Kamal v. Canada (Immigration, Refugees and Citizenship)

Kamal v. Canada (Immigration, Refugees and Citizenship)
Court (s) Database
Federal Court Decisions
Date
2018-05-04
Neutral citation
2018 FC 480
File numbers
IMM-3493-17
Decision Content
Date: 20180504
Docket: IMM-3493-17
Citation: 2018 FC 480
Ottawa, Ontario, May 4, 2018
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
MD MOSTOFA KAMAL
Applicant
and
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
JUDGMENT AND REASONS
I. Summary
[1] The Applicant is a thirty-one-year old citizen of Bangladesh. In 2015 he left Bangladesh and made a refugee claim in Canada. The refugee claim was suspended. He was subsequently found inadmissible because there were reasonable grounds to believe he was a member of an organization that engages in terrorism and instigated the subversion by force of the Bangladesh government. He was ordered deported. He seeks judicial review which is dismissed for the following reasons.
II. Background facts
[2] The Minister of Public Safety and Emergency Preparedness [Minister] alleges there are reasonable grounds to believe that the Applicant is a member of the Bangladesh Nationalist Party [BNP]. The Minister also alleges that the BNP is an organization that engages in terrorism and engaged in, or instigated the subversion by force of the Bangladesh government as set out in paragraphs 34(1)(c) and (b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[3] Findings to this effect were first made in a report prepared by a Canadian Border Security Agency [CBSA] enforcement Officer, acting pursuant to subsection 44(1) of IRPA.
[4] Thereafter, a delegate of the Minister of Public Safety and Emergency Preparedness, acting pursuant to subsection 44(2) of IRPA, referred the CBSA report to the Immigration Division of the Immigration and Refugee Board of Canada [ID] for an admissibility hearing.
[5] The matter was reviewed by the ID under subsection 44(2) of IRPA.
[6] The Minister of Public Safety and Emergency Preparedness took part in the ID hearing through counsel. The Minister argued that there are reasonable grounds to believe the Applicant is a member of the Bangladesh Nationalist Party. The Minister also asked the ID to find reasonable grounds to believe that BNP is an organization that engages in terrorism and engaged in, or instigated the subversion by force of the Bangladesh government per paragraphs 34(1)(c) and (b) of IRPA.
[7] The ID upheld the position of the Minister, finding reasonable grounds to believe both that the Applicant was a member of the BNP, and that the BNP engaged in terrorism and engaged in, or instigated the subversion by force of the Bangladesh government. As a consequence, the ID determined the Applicant was inadmissible on security grounds pursuant to paragraph 34(1)(f) of IRPA. Therefore the ID issued the Applicant a deportation order.
[8] The Applicant applies for judicial review of the ID’s decision pursuant to subsection 72(1) of IRPA.
[9] This application raises two issues. First, the Applicant challenges the decision on the ground that it is flawed by procedural unfairness. In my view, this argument is unfounded. The second asks whether the ID’s decision is reasonable, that is, whether it falls within the range of possible, acceptable outcomes defensible on the facts and law in this case. In my view, the decision of the ID is reasonable. Therefore, and for the following reasons, judicial review is dismissed.
III. Issues
[10] The following issues are raised by the Applicant:
a) Whether the ID breached the Applicant’s right to natural justice by refusing to allow as expert witness to testify?
b) Whether the ID member displayed a reasonable apprehension of bias by failing to recuse?
c) Whether the ID erred by finding that the BNP engaged in terrorism or subversion of force for the purposes of paragraph 34(1)(c) of IRPA?
[11] In my view, the central issues are:
(1) Did the ID breach procedural fairness with respect to the expert evidence or the alleged bias?
(2) Was the ID’s finding of reasonable grounds to believe that the Applicant is a member of the BNP, reasonable?
(3) Was the ID’s finding of reasonable grounds to believe that the BNP engaged, is engaging or will engage in terrorism, reasonable?
IV. Standard of Review
[12] In Dunsmuir v New Brunswick, 2008 SCC 9 at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a standard of review analysis is not necessary where “the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question”. This Court has determined that findings of inadmissibility under subsection 34(1) of IRPA are reviewable on the reasonableness standard: A.K. v Canada (Citizenship and Immigration), 2018 FC 236 [A.K.] per Mosley J; S.A. v Canada (Public Safety and Emergency Preparedness), 2017 FC 494 [S.A.] per Fothergill J, and my decision in Gazi v Canada (Citizenship and Immigration), 2017 FC 94 [Gazi] at para 17.
[13] Findings of the terrorist nature of an organization or an individual’s membership in a particular organization are reviewable on the reasonableness standard: Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86 at para 11 per Dawson JA; Suresh v Canada (Public Safety and Emergency Preparedness), 2017 FC 28 at para 44 per Mosley J; Mirmahaleh v Canada (Citizenship and Immigration), 2015 FC 1085 at para 15 per Gascon J; and see my decision in Ali v Canada (Minister of Citizenship and Immigration), 2017 FC 182 [Ali] at para 22.
[14] In Dunsmuir at para 47, the Supreme Court of Canada explained what is required of a court reviewing on the reasonableness standard of review:
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[15] An important factor in this analysis is the standard of proof applicable in this inadmissibility hearing. A standard of proof upon which the ID may make decisions under paragraph 34(1)(f) of IRPA is “reasonable grounds to believe”. The availability of this standard was enacted by Parliament in 2001. It is found in section 33 of IRPA:
Inadmissibility
Rules of interpretation
33 The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
Interdictions de territoire
Interprétation
33 Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.
[16] Further relevant law is established by this Court, the Federal Court of Appeal, and the Supreme Court of Canada, as noted in Gazi, at paras 19-22:
[19] In addition, I also wish to note at the outset that Senior Immigration Officers have a recognized and accepted degree of expertise in these matters: Gutierrez v Canada (Minister of Citizenship and Immigration), 2013 FC 623 at para 21 [Gutierrez]:
[21] The Federal Court of Appeal has held that the question of whether a person is a “member” of an organization described in paragraph 34(1)(f) of the IRPA is a question of mixed fact and law reviewable on a standard of reasonableness: Poshteh, above. The same applies to determining whether there are reasonable grounds to believe that the organizations in question have engaged, are engaging or will engage in acts of terrorism. In fact, these two aspects are closely related, and both raise questions of mixed fact and law in which immigration officers have a degree of expertise, as our Court has also recognized on a number of occasions: see, inter alia, Jalil v Canada (Minister of Citizenship and Immigration), 2006 FC 246 at paras 19‑20, [2006] 4 FCR 471 [Jalil]; Daud v Canada (Minister of Citizenship and Immigration), 2008 FC 701 at para 6, (available on CanLII) [Daud]; Omer v Canada (Minister of Citizenship and Immigration), 2007FC 478 at paras 8‑9, 157 ACWS (3d) 601.
[emphasis added]
[20] Moreover, the Federal Court of Appeal said of paragraph 34(1)(b) of IRPA that there is a presumption of deference to be afforded to the IAD’s interpretation of its home statute: Najafi (FCA), above at para 56. I see no reasons why a Senior Immigration Officer acting under paragraph 34(1)(c) of IRPA should not be afforded the benefit of the same presumption of deference, and so find.
[21] This Court in Gutierrez considered the standard of review in terms of the standard of proof under paragraph 34(1)(f):
[22] On the other hand, it should be noted that the standard of proof that an immigration officer must apply in the context of sections 34 to 37 of the IRPA is that of “reasonable grounds to believe” that the facts stated in those sections have occurred, are occurring or may occur (IRPA, s 33). It is settled law that this standard requires more than mere suspicion but is not equivalent to the balance of probabilities required in civil matters: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114, [2005] 2 SCR 100; Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 39, [2007] 1 SCR 350. Accordingly, the role of this Court when reviewing an immigration officer’s inadmissibility decision is not to determine whether, in fact, there were reasonable grounds to believe that the individual engaged in or was a member of an organization that engaged in the alleged acts but to consider whether the officer’s finding that there were reasonable grounds to believe can itself be regarded as reasonable.
[22] The Supreme Court of Canada held in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114, that “reasonable grounds to believe” requires something more than mere suspicion but less than the balance of probabilities:
The Federal Court of Appeal has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities [citations omitted] in essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible evidence.
[17] The Supreme Court of Canada instructs that judicial review is not a line-by-line treasure hunt for errors; instead, the reasonableness of a decision should be approached as an organic whole: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34. Further, a reviewing court must determine whether the decision, viewed as a whole in the context of the record, is reasonable: Construction Labour Relations v Driver Iron Inc, 2012 SCC 65; see also Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
[18] Questions of procedural fairness are reviewed on the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43. In Dunsmuir at para 50, the Supreme Court of Canada explained what is required of a court reviewing on the correctness standard of review:
When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
V. Analysis
A. Did the ID breach procedural fairness with respect to the alleged expert evidence and or the alleged bias of the decision-maker?
(1) Issues surrounding the alleged expert’s witness evidence
[19] At the Applicant’s request, the hearing before the ID was scheduled for Tuesday and Wednesday, June 6 and 7, 2017. On the Friday before the hearing, the Applicant requested leave to call an alleged expert witness to testify on five issues.
[20] An alleged separation between the BNP and Jubo Dal was not one of the five issues.
[21] The Minister objected to the late-filed request. At the hearing, and in reply, the Applicant sought leave to tender the alleged expert to testify in relation to an additional sixth issue, namely the alleged separateness between the BNP and Jubo Dal. The ID ruled against hearing oral testimony from the alleged expert on any of six issues. However, the ID did admit a lengthy draft report authored by the alleged expert.
[22] In dismissing the request, the ID considered both the lateness and the substance of the proposed testimony. The ID ruled the Applicant had given insufficient notice requirements of his request and refused to abridge the time to accommodate its lateness. With respect to the substance of the proposed testimony, the ID held that the alleged expert’s evidence was either irrelevant or unhelpful.
[23] In terms of notice, I am prepared to accept that the request was made on the Friday before the hearing, and not on the day before the hearing as stated by the Officer. The Applicant raised this matter a day or so before the judicial review hearing. That said, the request was still filed short of the five days’ notice required by paragraph 32(2)(b) of the Immigration Division Rules (SOR/2002-229).
[24] In terms of the alleged separateness between Jubo Dal and BNP, the sixth ground on which the Applicant wanted his alleged expert to testify, the Applicant sought to rely on a Response to Information Request [RIR] document, also not tendered earlier. The Applicant’s counsel said he came across the RIR the night before the hearing. The Applicant argued the RIR establishes that the BNP and Jubo Dal are completely separate from each one another. In this connection, the ID said:
[19] The topic of the RIR is the roles and responsibilities of the executive members of the local branches of the BNP and Jubo Dal. The author notes that information about this “was scarce amongst the sources consulted by the Research Directorate within the time constraints of this response.” […] The author quotes an unspecified “US-based professor of political science, who is a specialist in Bangladeshi politics.” […] In speaking about the executive committee structure of the Jubo Dal, the professor stated that it is:
a completely separate organization from the BNP, and it has completely separate executive committees from the BNP structure and leadership. The [Jatiyatabadi Juba Dal] structures its executive committees in a similar way to the BNP, however there is no overlap between the two organizations, as there is a practice of “graduation” of activists from [Jatiyatabadi Juba Dal] who then move into the BNP. The executive committees have the same positions and responsibilities as those of the BNP.[…]
[25] The ID disagreed with the Applicant’s interpretation of the RIR. The ID concluded the Applicant took certain phrases out of context. The ID found the RIR proved the Jubal Dal and BNP were related:
[20] Mr. Berger fixated on the phrase “completely separate organization” and took it out of context. This professor is addressing the separateness of the executive committee structures, not the overall nature of the relationship between the BNP and the Jubo Dal. Ironically, this statement actually tends to prove the relatedness of the organizations in saying that there is a practice of Jubo Dal members graduating into the BNP. I do not find that this RIR opened up a new basis for hearing testimony from Dr. Bahar.
[26] In my view, this is a fair analysis of the RIR. While there was evidence of separation between the BNP and Jubo Dal, there was also evidence that Jubo Dal is a front for the BNP, that Jubo Dal is under the command and control of BNP, and that there is a seamless transition from one to the other.
[27] Further and in this connection, neither the Applicant nor his supporters alleged any difference between the BNP and Jubo Dal when they filed their written material, including the Applicant’s BOC. They did not claim any difference or separation until the day of the hearing. It was at the hearing when the Applicant attempted to distance himself from his previous position that he was a member of BNP.
[28] The ID found the Applicant’s evidence, including statements in his BOC and letters provided by the Applicant, to be in direct contrast with the evidence of the alleged expert witness. Again this was fair on the record. It was open to the ID to prefer the Applicant’s firsthand evidence over the proposed expert witness’s evidence.
[29] In my respectful view, the decision not to hear from the alleged expert is not flawed by procedural unfairness; it was the exercises of a reasoned discretion.
(2) Alleged bias of ID
[30] After the ID’s ruled against hearing testimony from the Applicant’s alleged expert witness, counsel for the Applicant requested the ID member recuse herself on grounds of bias because she had allegedly “pre-judged the case” in disagreeing with the Applicant’s interpretation of the RIR.
[31] The ID member found the allegation of bias was baseless and dismissed the recusal request.
[32] Justice Kane sets out the test for bias in Poczkodi v Canada (Immigration, Refugees and Citizenship), 2017 FC 956 at para 50:
[50] The test for bias was established by Justice de Grandpré, writing in dissent, in Committee for Justice and Liberty at 394:
[…] the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information […] [T]hat test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[48] In R v S (RD), [1997] 3 SCR 484, 151 DLR (4th) 193 [RDS], at para 113, Justices L’Heureux- Dubé and McLachlin referred to the test and noted that the threshold for a finding of real or perceived bias is high, explaining that “an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.” The Court cautioned that allegations of bias are serious and should not be made lightly. The same principles apply to allegations against other decision makers.
[51] A reasonable apprehension of bias requires more than an allegation based on a passing comment in the decision. The allegation must be accompanied by cogent evidence (RDS at paras 114, 117). In this case, there is no evidence at all to suggest that an informed person would have a reasonable apprehension of bias.
[33] Before me, the Applicant specifically alleged not only apprehension of bias but actual bias:
This finding by the ID is tainted by bias as it disallows the Applicant from rebutting the Minister’s case against him; indeed it is a grave breach of natural justice as by refusing [name of the alleged expert] to testify on this basis, the ID is effectively breaching the Applicant’s right to put forward his case.
[34] In my respectful view, the allegations of apprehended bias and actual bias are unsupported. The ID made an evidentiary ruling in the course of an inadmissibility hearing. The Applicant requested relief from his failure to follow the rules established by the ID for the admission of oral evidence. It was open on the record for the ID to decline to abridge time; the ID not only considered the lateness of the filing but also considered the substance of the proposed testimony. The ID considered the Applicant’s newly-discovered RIR, which the Applicant used to support the request for oral testimony. The ID noted that the Applicant’s discovery of the RIR was extremely late in the day (the night before the hearing). Further, the ID found its lateness was inadequately explained.
[35] In my view, and with respect, the ID did nothing more than reject a request to admit oral evidence. The ID accepted a draft report from the proposed witness. In my view this exercise of the ID’s very considerable decision is unassailable. Having an interlocutory evidentiary ruling dismissed does not constitute grounds for apprehended bias. Nor do the circumstances in this case come close to grounding an allegation of actual bias. One party inevitably loses such motions. If it were otherwise, few if any decision-makers would escape motions to recuse.
[36] Finally, the Applicant says his apprehension of bias is heightened by the ID’s finding at para 25 of her decision that, “a baseless allegation of bias is unbecoming conduct for a lawyer.” Counsel submits that this is a “personal attack on counsel for advocating fearlessly and without frivolity for his client is indeed further evidence of the ID’s bias.” With respect, I disagree. Unjustified attacks on a decision-maker such as the ID on the basis of actual bias cannot be encouraged. I am not persuaded it is an error to state that a baseless allegation of bias is unbecoming conduct.
[37] In summary, I am not persuaded on the standard of correctness that there was a breach of procedural fairness.
B. Was the ID’s finding that there were reasonable grounds to believe that the Applicant is a member of the BNP, reasonable?
[38] This is a new issue raised at the hearing. It arose because the Applicant at the hearing attempted to distance himself from his previous assertions and accompanying evidence, that he was a member of the BNP. Before the ID, and essentially at the last minute, the Applicant alleged that he was not a member of BNP, but instead was a member of Jubo Dal, the BNP’s youth wing.
[39] The ID rejected this argument:
[36] In his Basis of Claim Form he wrote, “… I was a General Member and Publicity Secretary of Bangladesh Nationalist Party (BNP)[…]. In another section he wrote, “I fear that members of the Awami League will harm or kill me because of my BNP politics”.[…]
[37] In the narrative attached to his Basis of Claim Form, he wrote, “In February 2005, I joined the Jubodal, the youth wing of the Bangladesh Nationalist party, as a general member. In October 2006, I became Publicity Secretary of the Comilla City Jubodal committee. I organized meetings and processions and encouraged people to support the BNP.” […]
[38] He also described having been attacked as he “was going home from the BNP office”. He recounted how “[a]long with my fellow committee members, I participated in the BNP picketing program that was taking place.” After being threatened and attacked, he contacted the agricultural secretary of the BNP Central Committee and another BNP leader for assistance.[…]
[39] He referred to “my BNP colleagues who have also been falsely charged…”.[…]
[40] He signed a declaration in his Basis of Claim Form that the “entire content of this form and all attached documents have been interpreted to me” and that “the information I have provided in this form is complete, true and correct”. This was accompanied by a signed declaration from a Bengali interpreter confirming that, “The claimant has assured me that he/she understood the entire content of this form and all attached documents and the answers provided, as interpreted by me”.[…]
[41] Mr. Kamal also completed a Schedule A Background Form in which he indicated that he became a general member of the BNP in February 2005, then Publicity Secretary for the BNP in October 2006 and held that position until August 2015 when he came to Canada. He also signed a declaration for this form that the information he gave was true, complete and correct. He then signed another declaration in the presence of an immigration officer on November 2, 2015 that the information was true, complete and correct. A Bengali interpreter signed a declaration that he/she faithfully and accurately interpreted the content of the application and any related forms to the person concerned.
[Emphasis added.]
[40] As a result, the ID found that the Applicant’s attempt to distance himself from the BNP not credible; indeed the ID found it disingenuous. In my view, these findings are defensible on the record.
[41] The Applicant pressed his allegation respecting non-membership in the BNP by referring to the RIR he located the night before the hearing discussed above. The ID sets out the circumstances and contents of the RIR as follows:
[43] As noted earlier, [Applicant’s counsel] stated that he informed the Minister prior to the hearing that Mr. Kamal intended to concede being a member of the BNP. It was only after [Applicant’s counsel] found the RIR the night before the hearing that Mr. Kamal changed his position. This would imply that Mr. Kamal only realized that he was not a member of the BNP because [Applicant’s counsel] discovered the RIR. Otherwise, he erroneously believed for the past 12 years that he was a member and Publicity Secretary for the BNP. This lacks credibility and I find Mr. Kamal’s last-minute change to be disingenuous.
[44] During his testimony, Mr. Kamal said that he was Publicity Secretary for the Jubo Dal for only two years between October 2006 and October 2008, after which he became a general member. This conflicts with his Schedule A Background form in which he declared he became a general member of the BNP in February 2005 and Publicity Secretary for the BNP in October 2006. Mr. Kamal testified that he simply made a mistake in the form naming the BNP instead of the Jubo Dal because he does not speak English. This makes no sense. The name “Jatiyatabadi Jubo Dal” is not English whereas “Bangladesh Nationalist Party” is. Alternatively, if he did not understand the question in the form, this does not explain why then he gave the same information in his narrative attached to the Basis of Claim Form. Even more to the point, he confirmed that he completed the forms with the assistance of a lawyer and interpreter. He was evasive when confronted with the fact that he had made corrections to other information in the form and initialed those corrections, yet had made no correction to identifying himself as a BNP member. He said that someone from his lawyer’s office made the corrections and that he just initialed them. He could not explain, however, how that person knew to make those corrections. I do not find this credible.
[45] I find that the information in his refugee claim documents is more reliable since this is the information he provided in the first instance, prepared in writing with the assistance of a lawyer and interpreter, prior to this admissibility hearing where it is now in his interest to deny his membership and level of involvement in the BNP.
[46] I find on reasonable grounds that Mr. Kamal was a member of the Jubo Dal and that, throughout his membership and beyond, he understood that being a member of the Jubo Dal meant that he was also a member of the BNP.
[Emphasis added.]
[42] In addition, the ID referred to letters of support filed by the Applicant, one of which states:
In February 2005, Md Mostofa Kamal joined to the Jubodal, the youth faction of Bangladesh Nationalist Party as a general member under my leadership. Within a very short period of time, he achieved huge popularity as a member of the Bangladesh Nationalist Party of his own area South Chartha. As a result, in October 2006, he was nominated as a Publicity Secretary of the Executive Committee of Jubodal of Comilla District.
[Emphasis added.]
[43] Another letter supporting the Applicant states:
Md. Mostofa Kamal became a very popular worker in the Dakkhin Chartha area of the Bangladesh Nationalist Youth Party and he was Publicity Secretary of the Executive Committee of the Bangladesh Nationalist Youth Part of Comila [sic] District.
Since Md. Mostofa Kamal was a committed worked of the Bangladesh Nationalist Party, he became a victim of torture and persecution …
As all of his family members are the workers and supporters of the Bangladesh Nationalist Party, everybody is facing threats”. […]
[Emphasis added.]
[44] Yet another supporter writes:
Md. Mostofa Kamal and I together with all other political workers of the Comilla Youth Party, Bangladesh Nationalist Party used to participate in all the program and processions of the party. Md. Mostofa Kamal gained familiarity as a very popular political worker in Bangladesh Nationalist Party of South Chortha area. And until he left Bangladesh for going to Canada, he was the advocacy secretary of the executive committee of Camilla Youth Party. We always used to take part in the protest, defensive program and blockade of BNP together.[…]
[Emphasis added.]
[45] Another supporter says:
My brother Mostofa and myself have been active members of Bangladesh Nationalist Party in Camilla District since quite a long period. Everyone from my father’s and mother’s family is member and follower of Bangladesh Nationalist Party.
Mostofa kamal [sic] had been working as the Publicity Secretary of the Executive Committee of Camilla Bangladesh Nationalist Youth Party very successfully . . . .
... One of Mostofa’s maternal uncles Samsul Huda [the uncle Mr. Kamal named as a Jubo Dal member as noted above] was a General Secretary of executive Committee of Bangladesh Nationalist Party of Kotowali thana of Comilla ...
At present we have been getting so much threats as we all the followers and workers of the Bangladesh Nationalist Party [sic][...]
[Emphasis added.]
[46] Also in evidence before the ID was an RIR filed by the Minister. This RIR concludes in effect that Jubo Dal is a front organization for the BNP, and that the Jubo Dal falls under the discipline of the BNP, notwithstanding they have separate constitutions. As such a front, the RIR concludes that the purpose of Jubo Dal is to support the “implementation of the party programs”. Those were the BNP party programs.
[47] The ID considered all this and concluded that while the Jubo Dal enjoyed some autonomy, its existence and legitimacy is based on the constitution of the BNP. The ID further concluded that the “[t]he raison d’être of the Jubo Dal is to further the BNP. It falls under the discipline of the BNP and even shares in BNP governance in that the Jubo Dal secretary sits on the BNP’s national executive committee.”
[48] On this point, and in summary, the ID concluded on the record before it:
I find on reasonable grounds that the Jubo Dal is a facet of the BNP, and not a completely separate organization. By being a member of the Jubo Dal, Mr. Kamal was a member of the BNP.
[49] In my respectful view, this finding is defensible on the record.
C. Was the ID’s finding that she had reasonable grounds to believe that the BNP engaged, is engaging or will engage in terrorism, reasonable?
[50] The next step is to consider the meaning of “engaging in terrorism” in paragraph 34(1)(c) of IRPA. This was legislated by Parliament in amendments to IRPA forming part of Canada’s response to the September 11, 2001 World Trade Center and Pentagon attacks:
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 :
[…]
[…]
(c) engaging in terrorism;
c) se livrer au terrorisme;
[51] Terrorism was defined by the Supreme Court of Canada shortly thereafter in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 [Suresh] at para 98:
[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.
[52] In 2001, as another part of Canada’s response to 9 / 11, Parliament created new crimes in connection with which it legislated a definition of “terrorist activity” as paragraph 83.01(1)(b) of the Criminal Code, RSC, 1985, c C-46:
terrorist activity means
activité terroriste
[…]
[…]
b)an act or omission, in or outside Canada,
b)soit un acte — action ou omission, commise au Canada ou à l’étranger:
(i) that is committed
(i) d’une part, commis à la fois:
(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and
(A) au nom — exclusivement ou non — d’un but, d’un objectif ou d’une cause de nature politique, religieuse ou idéologique,
(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and
B) en vue — exclusivement ou non — d’intimider tout ou partie de la population quant à sa sécurité, entre autres sur le plan économique, ou de contraindre une personne, un gouvernement ou une organisation nationale ou internationale à accomplir un acte ou à s’en abstenir, que la personne, la population, le gouvernement ou l’organisation soit ou non au Canada,
(ii) that intentionally
(ii) d’autre part, qui intentionnellement, selon le cas :
(A) causes death or serious bodily harm to a person by the use of violence,
A) cause des blessures graves à une personne ou la mort de celle-ci, par l’usage de la violence,
(B) endangers a person’s life,
B) met en danger la vie d’une personne,
(C) causes a serious risk to the health or safety of the public or any segment of the public,
C) compromet gravement la santé ou la sécurité de tout ou partie de la population,
(D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or
D) cause des dommages matériels considérables, que les biens visés soient publics ou privés, dans des circonstances telles qu’il est probable que l’une des situations mentionnées aux divisions (A) à (C) en résultera,
(E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C),
E) perturbe gravement ou paralyse des services, installations ou systèmes essentiels, publics ou privés, sauf dans le cadre de revendications, de protestations ou de manifestations d’un désaccord ou d’un arrêt de travail qui n’ont pas pour but de provoquer l’une des situations mentionnées aux divisions (A) à (C).
and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law. (activité terroriste)
Sont visés par la présente définition, relativement à un tel acte, le complot, la tentative, la menace, la complicité après le fait et l’encouragement à la perpétration; il est entendu que sont exclus de la présente définition l’acte — action ou omission — commis au cours d’un conflit armé et conforme, au moment et au lieu de la perpétration, au droit international coutumier ou au droit international conventionnel applicable au conflit ainsi que les activités menées par les forces armées d’un État dans l’exercice de leurs fonctions officielles, dans la mesure où ces activités sont régies par d’autres règles de droit international. (terrorist activity)
[53] In my view, the ID acted reasonably in considering both the definition of “terrorism” in the Suresh decision of the Supreme Court of Canada, and the definition of “terrorist activity” in the Criminal Code in determining there were reasonable grounds to believe that the BNP was engaging in terrorism: S.A., at para 17; Ali at paras 39-45; Soe v Canada (Minister of Citizenship and Immigration), 2007 FC 671 at paras 22-24; Toronto Coalition to Stop the War v Canada (Public Safety and Emergency Preparedness), 2010 FC 957 at para 102; and Gazi at para 27. I do not read A.K. as concluding otherwise.
[54] It is worth noting that Parliament enacted section 83 of the Criminal Code in the same post 9 / 11 period it enacted what is now paragraph 34(1)(c) [engages in terrorism] of IRPA; both came into force in December 2011. I am not persuaded Parliament enacted these two provisions virtually simultaneously in the expectation they would thereafter to be considered in isolation.
[55] A hallmark of terrorism, as Justice Mosley stated in A.K. at para 41, is the intention to and/or use of violence to achieve the political ends:
I have considerable difficulty with the notion that a general strike called by a political party in an effort to force the party in power to take steps such as proroguing Parliament or convening by-elections, falls within the “essence of what the world understands by ‘terrorism’”. It is not an overstatement to suggest, as the Applicant has in these proceedings, that the Respondent’s interpretation of the statute could capture political activities which, if carried out in Canada, would be protected under s 2 of the Canadian Charter of Rights and Freedoms, absent an intention to use violence to achieve the political ends.
[Emphasis added.]
[56] In finding reasonable grounds to believe the BNP engaged in terrorism, the ID focused on just that: the use of violence to achieve the political ends. Indeed, the ID referred to the BNP’s conduct as an “orgy of violence.”
[57] In coming to its conclusion, the ID had evidence before it. I will not go through it all; it is in the record. The ID made its findings after considering the history of the BNP taken from numerous sources including The Guardian (a newspaper), Human Rights Watch, Amnesty International. It also had before it announcements made by the BNP itself.
[58] In the result, the ID found reasonable grounds to believe that BNP engaged in “terrorism” as understood for the purposes of s. 34(1)(c) by using hartals which the ID, as a matter of fact, found had become synonymous with violence causing death or serious bodily injury. The ID concluded:
I find on reasonable grounds that the BNP