Opu v. Canada (Public Safety and Emergency Preparedness)

Opu v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2022-05-04
Neutral citation
2022 FC 650
File numbers
IMM-5524-20
Decision Content
Date: 20220504
Docket: IMM-5524-20
Citation: 2022 FC 650
Toronto, Ontario, May 4, 2022
PRESENT: Justice Andrew D. Little
BETWEEN:
MD ALMAMUN OPU
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
JUDGMENT AND REASONS
[1] In this application for judicial review, the applicant seeks to set aside a decision of the Immigration Appeal Division (“IAD”) made on September 9, 2020, under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA”).
[2] The IAD concluded that there were reasonable grounds to believe that the applicant was inadmissible to Canada on grounds of security as a member of the Bangladesh Nationalist Party (“BNP”) under paragraph 34(1)(f). The IAD concluded that the BNP was an organization that engages, has engaged or will engage in acts referred to in paragraph 34(1)(c), which concerns engaging in terrorism. There was no allegation that the applicant himself engaged in any acts of terrorism. His inadmissibility was solely based on his membership in the BNP.
[3] For the reasons below, I conclude that the IAD’s decision was reasonable, applying the principles in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. The application will therefore be dismissed.
I. Facts and Events Leading to this Application
[4] The applicant is a citizen of Bangladesh. He arrived in Canada in June 2013.
[5] In June 2014, he claimed refugee protection under the IRPA on the basis of political belief.
[6] In his refugee claim, the applicant declared himself a “senior official” of the BNP. His membership began in the student wing of the BNP from December 1999 to December 2004. From January 2005 to May 2013, he was Assistant Organization Secretary at the branch level in the district of Dhaka. From March 2003 until April 2013, the applicant was also Vice President of the BNP branch of his home village.
[7] At his first admissibility hearing, the Immigration Division (“ID”) found that the applicant was inadmissible as a member of an organization described in IRPA paragraph 34(1)(f) and issued a deportation order. This Court granted him leave to apply for judicial review and the matter was returned on consent for redetermination.
[8] On redetermination, the ID concluded that the Minister had not established that the applicant was inadmissible on security grounds as alleged.
[9] The Minister appealed to the IAD and succeeded. The IAD’s decision dated September 9, 2020, is the subject of this application for judicial review. The IAD also issued a deportation order dated September 9, 2020.
II. The IAD’s Decision and Reasons
A. Introduction
[10] The IAD made a number of initial findings, which are not at issue in this application, including:
a) the standard of proof was “reasonable grounds to believe” under IRPA section 33 as understood in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100, at para 114 (i.e., “reasonable grounds to believe” requires something more than mere suspicion, but less than a balance of probabilities, and will exist where there is an objective basis for the belief that is based on compelling and credible information);
b) the BNP was an “organization” for the purposes of paragraph 34(1)(f);
c) the applicant was a member of the BNP (although the applicant took issue with the timing, level of involvement and cessation of his membership).
[11] The IAD adopted the following definition of terrorism from the Supreme Court of Canada’s decision in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3, at paragraph 98:
[terrorism] 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”.
[12] Neither party disputed the IAD’s use of this (non-exhaustive) definition of terrorism.
[13] There are two major political parties in Bangladesh. BNP is one and the Awami League is the other. The two parties have effectively alternated being in government and opposition. There are periodic national elections, one of which occurred in 2014.
[14] The IAD provided a history of political opposition and violence in Bangladesh from the time it became an independent nation in 1971. The IAD also described the use of blockades and hartals in Bangladesh politics, including during the period leading up to an election.
[15] Hartals are a form of opposition protest. Hartals have been used by both major parties in Bangladesh, while in opposition, as a way to attempt to effect change by the other party in government. Unfortunately, hartals in Bangladesh have commonly led to violence, including death and serious injury to individuals. Government security forces and others involved in the hartals have perpetrated the violence.
[16] The IAD’s decision in this case found that hartal violence routinely occurs and causes death and serious injury to those involved. The IAD found that some forms of violence are built into the planning and preparation for a hartal. Overall, the IAD concluded that hartals in Bangladesh had become synonymous with a call to violence and that this violence was intended to intimidate the public into respecting the hartals and blockades and to obtain the political goals of the BNP. The IAD found that there were reasonable grounds to believe that the BNP intended to cause death or serious injury to civilians when calling for hartals in the context of the political situation in Bangladesh.
[17] The IAD concluded on the evidence that there were reasonable grounds to believe that actions of the BNP in calling for hartals amounted to acts of terrorism or subversion by force, including in the period from 2013 to 2015 that is important for this case.
[18] The IAD relied on a 2014 report by Human Rights Watch entitled Democracy in the Crossfire: Opposition Violence and Government Abuses in the 2014 Pre- and Post-Election Period in Bangladesh and a 2005 report of the United Nations Development Program (“UNDP”) entitled Beyond Hartals: Towards Democratic Dialogue in Bangladesh.
B. The IAD’s Reasoning
[19] The IAD recognized that to be terrorism, an act must have intended to cause death or serious bodily injury to a civilian 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 abstain from doing from any act.
[20] The IAD stated that the existence of general political violence did not preclude a determination that an organization engages in terrorism, nor did it lead to such a finding. The context was relevant to the analysis. The question to be answered was whether there were reasonable grounds to believe that the specific actions of the BNP amounted to acts of terrorism or subversion by force. The IAD agreed with the applicant that blanket allegations without specifying the acts, or showing the general existence of violence without showing a clear link between the BNP and the violence, would not be sufficient for the Minister to discharge his burden.
[21] After referring to prior decisions of this Court, the IAD found that specific intent can be found where “a consequence is certain or substantially certain to result from an act or omission” (citing Saleheen v Canada (Public Safety and Emergency Preparedness), 2019 FC 145, [2019] 3 FCR 43, at para 42). The IAD found, for the “reasons set out below”, that there were reasonable grounds to believe that the BNP intended to cause death or serious injury to civilians when calling for hartals in the context of the political situation in Bangladesh.
[22] The IAD concluded that the call for hartal in contemporary Bangladeshi politics had become synonymous with a call to violence. Such violence was intended to intimidate the public into respecting the hartals and to obtain the political goals of the BNP. In 2013 – 2014, the goal was to have a caretaker government installed for the upcoming elections. In 2015, it was to have fresh elections called. This was also the approach taken by the Awami League in opposition prior to the scheduled 2007 elections, which were held in late 2008.
[23] The IAD made a number of other statements and findings related to the BNP’s acts, its responsibility for them and its intent, as follows:
While some violence such as clashes between protesters and security forces routinely occur and may be seen as a by-product of a hartal, other forms of hartal violence are built into the planning and preparation for carrying out the hartal;
the UNDP report found that violent enforcement acts are part of the preparation and implementation of calls for hartal, and that the government, through its party supporters and use of security forces, aggressively reacts to such action;
while political violence was quite common in Bangladesh, the period between 2013 to 2015 (covering the lead up to the 2014 election, the 2014 election itself and the period following the election) saw “violence on an unprecedented scale”. This included violent clashes involving the BNP and other opposition protesters against pro-government supporters and security forces, as well as violence committed against the general public while enforcing the hartal and blockade actions called by the BNP;
the enforcement action was part of the planning and implementation of the hartal and involved procuring the tools of hartal, including various types of explosives (bombs and grenades);
many Bangladeshis lost their lives or suffered horrific burns. The IAD noted the number of people dead and injured in late 2013 to early 2014;
although many opposition parties played an active role in the protests and violence, the BNP called for the hartal action through the party’s Steering Committee. In continuing calls for hartals and blockades when the resulting deaths and serious injuries to civilians were clear to see, there were reasonable grounds to believe that the continuation of the violence likely was intended by the BNP leadership;
the IAD disagreed with the applicant’s submission that the BNP was not in a position to lead protests, control its crowd or give directions and instructions. While some BNP leaders were arrested during the hartal action, its leader and other party officials continued calling for the hartal action;
while some reports referred to the BNP acting with another party, or described those responsible for the attacks against civilians as the “BNP-led opposition” or “the opposition”, the BNP remained responsible for the acts. The BNP was the leading opposition party, called for the hartals and blockades and continued to call for these actions when they resulted in violence causing death and serious bodily injury to members of the general public. “That hartals and blockades were again called by the BNP in January 2015 with the same violence resulting in death and serious injury to civilians further supports there being reasonable grounds to believe that such deaths and serious injury were intended in the calls for blockade and hartal action”;
there was little evidence that the BNP condemned or disavowed violence, outside of casting blame on the government and condemning its acts. “Undermining these statements against violence, the BNP continued calls for hartals and blockades, even as violence intensified and called again for such action in 2015”;
as seen in the evidence around the organization and implementation of hartals and their use in Bangladeshi politics, built into the call for hartal was their enforcement and their intention to do so through violence. This intention could be seen in the BNP’s continuing call for hartals as the violent enforcement action was leading to deaths and serious bodily injury to civilians;
while other parties may have been involved in the violence and while each individual violent incident may not have been directly ordered by the BNP, this did not change the fact that in calling for hartals there was an intention that the violent enforcement of the hartal would occur for the political party’s gain; and
the BNP again made calls for hartal in 2015, as the anniversary of the 2014 elections approached, which continued for weeks.
[24] The IAD’s reasons included several paragraphs containing specific incidents targeting civilians in late 2013 and early 2014, in which individuals were seriously injured or killed.
[25] The IAD was also conscious that some political activities akin to a hartal such as a general strike could, if carried out in Canada, be protected under the Canadian Charter of Rights and Freedoms, “absent an intention to use violence to achieve the political ends” (citing AK v Canada (Citizenship and Immigration), 2018 FC 236, at para 41). However, the IAD found that the evidence was sufficient to establish on reasonable grounds to believe that in calling for the hartals and blockades there was such an intention on the part of the BNP to use violence to achieve their political ends.
[26] The IAD held that knowing what the call to hartal and blockade meant to followers and the likely outcome of the enforcement measures, given the development of hartals in the current political context in Bangladesh and what is involved in the planning and implementation of hartals, such a call was synonymous with the likely death or serious injury of civilians. This was “part of the chaos the BNP was trying to create in Bangladesh” to have the government either concede to demands for the installment of a caretaker government for the elections or to have military intervene and install one as was done when the Awami League previously protested elections under the BNP in 2006.
[27] The IAD concluded that the evidence was sufficient to establish reasonable grounds to believe that the BNP engaged in acts of terrorism with the calls for hartals and blockades in the lead up to and aftermath of the 2014 election and around the 2015 anniversary of election, knowing the violent enforcement of these acts by its supporters would likely lead to serious bodily injury or death to members of the general public (civilians). The violent enforcement was an intended part of the planning and carrying out of the hartal and blockade action, meant to intimidate the population into complying with the cartel and blockade action and to compel the government to act according to the opposition demands, initially seeking the instalment of a neutral caretaker government for the elections and later seeking fresh elections (after boycotting the initial elections).
III. Was the IAD’s Decision Reasonable?
A. Standard of Review
[28] Both parties submitted that the standard of review is reasonableness, as described in Vavilov. I agree: Al Ayoubi v Canada (Citizenship and Immigration), 2022 FC 385, at para 15; Chowdhury v Canada (Citizenship and Immigration), 2022 FC 311, at para 7 (“Chowdhury 2022”); Islam v Canada (Citizenship and Immigration), 2022 FC 261, at paras 14-17; Islam v Canada (Public Safety and Emergency Preparedness), 2021 FC 108 (“Islam 2021”), at paras 11-12.
[29] Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision is transparent, intelligible and justified: Vavilov, at paras 12-13 and 15.
[30] The starting point is the reasons provided by the decision maker: Vavilov, at para 84. The reviewing court must read the reasons holistically and contextually, and in conjunction with the record that was before the decision maker: Vavilov, at paras 91-96, 97, and 103; Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, at paras 28-33. The Court’s review considers both the reasoning process and the outcome: Vavilov, at paras 83 and 86.
[31] A reasonable decision is one that is based on an internally coherent and a rational chain of analysis and is justified in relation to the facts and law that constrained the decision maker: Vavilov, esp. at paras 85, 99, 101, 105-106 and 194; Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, at paras 24-35.
[32] The Supreme Court has identified two types of fundamental flaws in administrative decisions: a failure of rationality internal to the reasoning process; and when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it: Vavilov, at para 101; Canada Post, at paras 32, 35 and 39.
[33] A minor misstep or peripheral error will not justify setting aside a decision. In order to intervene, the court must find an error in the decision that is sufficiently central or significant to render the decision unreasonable: Vavilov, at para 100; Canada (Citizenship and Immigration) v Mason, 2021 FCA 156, at para 36; Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157, at para 13.
[34] On a judicial review application, this Court’s role is not to agree or disagree with the decision under review, to reassess the merits or to reweigh the evidence: Vavilov, at para 126; Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50, at paras 53-54; Mason, at para 12. The Court’s task is to determine whether the decision maker made one or more of the kinds of errors described in the appellate cases above and if so, whether the decision should be set aside as unreasonable.
B. The Applicant’s Position
[35] The applicant took the position that the IAD’s decision was unreasonable to conclude that the BNP was an organization that engages, has engaged or will engage in terrorism under paragraph 34(1)(c). The applicant submitted that the IAD:
made errors of law with respect to specific intent and failed to support its findings on that issue; and
made errors in its assessment of the evidence that led to its conclusions under paragraph 34(1)(c), including by failing to show a clear link between actions of the BNP and the violence surrounding the 2014 election.
[36] Second, the applicant also argued that the IAD erred in its analysis of the temporal connection between the applicant’s membership in the BNP and the BNP’s alleged acts of terrorism.
[37] Third, the applicant argued that he was denied procedural fairness because the IAD did not address one of his alternative submissions.
[38] I will address these issues in turn.
C. Was the IAD’s conclusion reasonable that the BNP engaged in terrorism under IRPA paragraph 34(1)(c)?
(1) Specific Intent
[39] This Court has held that the requirement in the description of terrorism in Suresh for an “act intended to cause death or serious bodily injury” is a requirement that there be a specific intention to cause such an outcome: see e.g., Rana v Canada (Public Safety and Emergency Preparedness), 2018 FC 1080, at para 66; Saleheen, at paras 41–43; Foisal v Canada (Citizenship and Immigration), 2021 FC 404, at paras 14–16. Neither party disputed this requirement as a matter of law.
[40] The applicant made a number of arguments to challenge the IAD’s conclusions about specific intent. The applicant disputed the evidence the IAD used to infer that the BNP had the specific intent to cause death or serious injury. According to the applicant, the IAD erroneously used evidence about the Awami League’s activities, when it was in opposition prior to 2005, as a basis to make conclusions about what the BNP did to plan, implement and enforce hartals for the period around the 2014 election. In particular, it allegedly imputed conduct required to show specific intent from one opposite party onto another party’s actions much later in time.
[41] The applicant also submitted that the IAD erred in law by equating knowledge that an act may cause violence, with the more onerous requirement to show specific intent to cause death or serious injury in the definition of terrorism in Suresh, contrary to decisions of this Court in Islam v Canada (Public Safety and Emergency Preparedness), 2019 FC 912 at paras 23-25 (“Islam 2019”), Foisal v Canada (Citizenship and Immigration), 2021 FC 404 at para 15 and MN v Canada (Public Safety and Emergency Preparedness), 2019 FC 796, at para 11. The applicant maintained that the IAD could not find that a general call for hartal substituted for the intention to cause death or serious injury even if violence, or death and serious injury, had occurred during hartals before the 2014 election period. On this view, knowledge that such consequences might occur after a call for hartal, or that they were foreseeable, was not enough to show specific intent.
[42] In criminal proceedings in Canada, criminal offences require proof of a mental element. The Supreme Court in Tatton confirmed that most are general intent offences: they require the proof of a mental element that is “straightforward” and involves “little mental acuity”. Some other offences require proof of a heightened mental element that involves more complex thought and reasoning processes – acting with an ulterior purpose in mind or with an intention to being about certain consequences, or with actual knowledge of certain circumstances or consequences: R v Tatton, 2015 SCC 33, [2015] 2 SCR 574, at paras 35-38, 41 and 48. In Tatton, the Supreme Court stated:
[39] To summarize, specific intent offences contain a heightened mental element. That element may take the form of an ulterior purpose or it may entail actual knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes. Alternatively, it may involve intent to bring about certain consequences, if the formation of that intent involves more complex thought and reasoning processes. General intent offences, on the other hand, require very little mental acuity.
[43] How has the legal standard for specific intent been considered by this Court with respect to an organization’s acts of terrorism under IRPA subsection 34(1), when reviewing decisions for reasonableness? A number of recent cases have specifically considered these issues in the context of the BNP.
[44] In SA v Canada (Public Safety and Emergency Preparedness), 2017 FC 494, the Court did not set aside the ID’s decision. The Court stated summarily that given the broad definition of terrorism in Canadian law, the purpose and intent of the BNP’s calls for hartals, the violence and disruption that ensued, and the BNP’s awareness of the consequences of its calls to action, the ID reasonably concluded that the BNP is an organization that engages, has engaged, or will engage in terrorism: SA, at para 20.
[45] In Saleheen, the Court recognized the requirement for proof of specific intent, noting that in criminal law, a specific intention requires actual intent or purpose to achieve a consequence. “Specific intent can also be found where a consequence is certain or substantially certain to result from an act or omission”: at para 42. The Court in Saleheen upheld the ID’s decision because, despite apparent confusion about the degree of mental element to show terrorism, the ID had made the requisite finding of specific intent to cause violence: Saleheen, at paras 46-49. The Court found that the ID’s findings of fact showed that while recklessness or wilful blindness could be said to characterize the first calls for hartals, the continued calls for hartals after that time showed that the BNP intended the violence to happen: Saleheen, at para 50.
[46] In Khan v Canada (Citizenship and Immigration), 2019 FC 899, the Court declined to set aside an ID decision. The ID found that violence taking place prior to and during hartals was predictable enough such that leaders knew that it would lead to death or serious injury, and consequently that the BNP was a terrorist organization: Khan, at paras 30, 34-35. The Court noted that the ID also found that the leader of the BNP did not intervene, or at least not enough, to ensure that hartals would no longer be synonymous with violence: at para 35.
[47] In Islam 2019, the Court set aside a decision of the ID, owing to an error on the mental element required. The Court concluded that the ID ignored the requirement to show an intention to cause death and serious bodily harm and substituted a requirement that there was knowledge, or even wilful blindness, that the calling for hartals would result in deaths and injuries: Islam 2019, at paras 21-31.
[48] In Miah v Canada (Public Safety and Emergency Preparedness), 2020 FC 38, the ID’s conclusions imported concepts of knowledge and wilful blindness into its reasoning, stating for example that given the “predictable consequences of calling a hartal, it is difficult to find that political leaders did not know that deaths amongst the civilian population or serious bodily harm would result”. The Court did not set aside the decision, concluding at paragraph 43:
the ID also found that it was not plausible that the BNP did not intend to further its political goals through the use of violence that would cause civilian deaths and serious injury. The panel traced the history and inevitability of hartal violence; the BNP’s repeated calls for hartals; the role of its leadership, student wings, armed cadre and supporters; the mechanics and perpetrators of the violence; and the resulting deaths and injuries. Although expressed in the negative, the ID imputed to the BNP and its political leaders the requisite specific intention to cause death and bodily harm. In so doing, the panel properly applied the Suresh test. The ID’s finding is internally coherent and justified on the record.
[Emphasis added.]
[49] In some recent cases, the Court has set aside decisions under subsection 34(1) on the grounds that the decision maker erred in law by finding specific intent using a lower level of intent or culpability than required to show specific intent.
[50] In Islam 2021, the Court set aside an ID decision. The ID had found it “implausible that the BNP did not intend to cause death or serious bodily harm because it should have known that the hartals would result in violence”: at para 21. The Court held that the ID made the same error as it did in Islam 2019 by conflating intent with wilful blindness and knowledge and by substituting a lower mental element for the required intention to cause death or serious bodily harm: Islam 2021, at paras 21-22.
[51] In MN, the Court also set aside an ID decision. The only issue was whether the BNP was an organization that had engaged in terrorism. The Court held that the ID never clearly made a finding that the BNP, as an organization, had an intention to cause death or serious bodily harm. Instead of focusing on the intention to cause death or bodily harm, the ID’s findings conflated violence in general with death or serious injury: MN, at paras 10-11. The Court stated at paragraph 12:
... the fact that lethal violence takes place during protests called by a political party may or may not lead to a finding that the political party has engaged in terrorism. Such a finding would need to be based on an analysis of a number of factors, including the circumstances in which violent acts resulting in death or serious bodily harm were committed, the internal structure of the organization, the degree of control exercised by the organization’s leadership over its members, and the organization’s leadership’s knowledge of the violent acts and public denunciation or approval of those acts. In this case, it appears that the ID focused exclusively on the last factor.
[Emphasis added.]
[52] In Foisal, the Court concluded that the decision was unreasonable because it equated the required specific intent with “knowledge of probable consequences” of the use of hartals or with a form of recklessness regarding the effects of hartals on the general population. In so doing, it effectively substituted a lower degree of fault for the specific intent requirement that characterized the concept of terrorism: at para 15. The decision maker had not mentioned a requirement to show specific intent anywhere in the decision and relied on the climate of violence during the 2014 election period and the impact of hartals on Bangladeshi society to conclude that only an intent to cause death or serious injury could have motivated the BNP when it decided to use the hartals: Foisal, at paras 16-17. The Court stated at para 17:
To the extent that the ID based its reasoning on the presumption that there is an equivalence between the use of violence and the intent to cause death or serious injury, I am of the view that its analysis is unreasonable. Violence cannot be indiscriminately confused with causing death or serious injury: M.N. at paragraph 11; Islam 2019 at paragraph 23; Islam 2021 at paragraph 20. This intellectual shortcut amounts, in effect, to a lowering of the fault requirement.
[53] In Chowdhury 2022, the Court found a reviewable error because the officer’s primary conclusion was that the BNP engaged in tactics for which injuries and deaths were “entirely foreseeable”: Chowdhury 2022, at para 30.
[54] In the present case, I find no reviewable error in the IAD’s description or application of the legal standard in Mugesera for finding that there were reasonable grounds to believe the BNP engaged in terrorism as described in Suresh, including on specific intent.
[55] First, the IAD recognized that the legal requirement was to show specific intent and expressly concluded that there were reasonable grounds to believe that the BNP intended to cause death or serious injury to civilians when calling for hartals in the context of the political situation in Bangladesh.
[56] Second, the IAD’s findings were consistent with the substantive requirements in Tatton. The IAD found that violence by BNP supporters was an intended part of the planning, execution and enforcement of the hartal and blockade action, including with bombs and grenades, which led to serious bodily injury or death to members of the general public. Its factual findings, in particular concerning hartal planning, implementation and enforcement, and the continued calls for hartal after deaths and serious injuries had already occurred, demonstrate that the IAD turned its mind to and concluded that the BNP intentionally engaged in acts involving a heightened mental element: as Tatton described, intent or knowledge based on a more complex thought and reasoning processes.
[57] Third, the IAD expressly made important findings related to calls for hartals and blockages that this Court has concluded were reasonable to support specific intent in prior cases. The IAD held, as of the lead-up to the 2014 elections:
a) the call for hartal in contemporary Bangladeshi politics had become synonymous with a call to violence, where violence was intended to intimidate the public into respecting the hartals and to obtain the political goals of the BNP;
b) hartal violence routinely occurred and caused death and serious injury to those involved; and
c) the call for hartal was also synonymous with the likely death or serious injury of civilians and was part of the chaos the BNP was trying to create.
[58] The IAD also found “violence on an unprecedented scale” in the lead up to the 2014 election, the 2014 election itself and the period following the election.
[59] The IAD further expressly found that the BNP leader and party officials continued to call for hartals after violence had occurred and had intensified and after the resulting deaths and serious injuries to civilians were clear to see: see Saleheen, at para 50. In January 2015, the BNP continued to call for hartals and blockades, with the same violence resulting in death and serious injury to civilians. To the IAD, this further supported the existence of reasonable grounds to believe that such deaths and serious injury were intended in the calls for blockade and hartal action. Further, there was little evidence that the BNP condemned or disavowed violence: see Khan, at para 35.
[60] The IAD reached its conclusions after considering the UNDP and Human Rights Watch reports and other materials filed by both parties. Its conclusion that calls for hartals were synonymous with violence that resulted in death or serious injuries to civilians was based on numerous factors: a review of historical hartals prior to elections; the BNP’s ongoing calls for hartals in the period leading up to and after the 2014 elections; the finding that the planning and enforcement of hartals included tools such as bombs, petrol bombs and grenades; the conclusion that deadly violence is inherent in the call for hartal; and the BNP leadership’s knowledge, continuing calls for hartals even after death and serious injuries had occurred; and failure to condemn such violence. The IAD’s overall approach was similar to the ID that was upheld in Miah, in which the ID “traced the history and inevitability of hartal violence; the BNP’s repeated calls for hartals; the role of its leadership, student wings, armed cadre and supporters; the mechanics and perpetrators of the violence; and the resulting deaths and injuries”: Miah, at para 43.
[61] In this Court’s decisions, a finding of equivalence between calls for hartals and violence, or hartals and violence that resulted in death or serious injuries to civilians, has been important in upholding prior ID and IAD decisions as reasonable. The ID made a similar finding that hartals had become synonymous with violence in Miah, at para 13; Kamal v Canada (Immigration, Refugees and Citizenship), 2018 FC 480, at paras 58 and 64; and SA, at para 18.
[62] Conversely, as the Court recognized in Saleheen, Rahman and Alam, the absence of a finding that the BNP’s calls for hartals were synonymous with calls to commit terrorist acts was central to Justice Mosley’s decision to set aside the ID’s decision in AK v Canada (Citizenship and Immigration), 2018 FC 236: Saleheen, at para 30; Rahman v Canada (Public Safety and Emergency Preparedness), 2019 FC 807, at para 29; and Alam v Canada (Citizenship and Immigration), 2018 FC 922, at para 20. Justice Mosley distinguished the decision in SA on that basis: AK, at para 42. It is true that the Court set aside an ID decision in Islam 2019 despite a finding that hartals were synonymous with violence where deaths and serious violence ensued: Islam 2019, at para 18. However, the IAD in this case expressly did what the Court required in Islam 2019, at para 26. It found that the BNP intentionally caused the requisite harm.
[63] Fourth, reading the IAD’s reasoning on this issue as a whole, the IAD did not apply an incorrect legal standard for specific intent by lowering the mental element or substituting recklessness or wilful blindness for the required intention, as occurred in in Islam 2019, at paras 21-31; in Islam 2021, at paras 21-22; in MN, at paras 10-11; and in Foisal, at paras 15-18. It understood the requirements for the degree of fault required and expressed conclusions about a specific intention to cause death or serious injury, finding reasonable grounds to believe that the BNP intended to cause death or serious injury to civilians when calling for hartals in the context of the political situation in Bangladesh.
[64] It is true that the IAD’s reasoning was not entirely uniform, in that it also used some language of knowledge (which the applicant challenged) and likelihood (which I raised in a question at the hearing). For example, it stated that BNP engaged in acts of terrorism with the calls for hartals and blockades in the lead up to and aftermath of the 2014 election and around the 2015 anniversary of election, “knowing the violent enforcement of these acts by its supporters would likely lead to serious bodily injury or death to members of the general public”. Recognizing the Court’s recent cases on the mental element under paragraph 34(1)(c), the IAD’s language on likelihood appears to be consistent with recklessness rather than knowledge or appreciation of consequences that are certain or substantially certain: see Saleheen, at paras 42 and 46-50 (which was expressly relied upon by the IAD) and the discussions in R v Boone, 2019 ONCA 652, at paras 51-63; R v Chartrand, [1994] 2 SCR 864, at pp. 889-890; and R v Buzzanga and Durocher (1979), 49 CCC (2d) 369, at pp. 384-385. However, read in the context of its other findings about the BNP’s purposes and intentions and the Supreme Court’s guidance in Tatton, I am not persuaded that the IAD’s use of this language in this case leads to the conclusion that the IAD made a reviewable error of law, or that the IAD ignored a legal constraint in a manner that was fatal to the reasonableness of its conclusions on engaging in terrorism. As already noted, the IAD made express findings about specific intent that complied with the standard in Tatton, and extensive factual findings to support them. Those findings included the planning and implementation of violent hartals, that calls for hartals were synonymous with violence and death or serious injury to civilians, that the time period in question saw violence on an “unprecedented scale” and that the BNP continued to call for hartals even after civilians had been killed or seriously injured, all to attain its desired outcomes. As already noted, the requirement for the required heightened mental element, as a matter of law, may take the form of an ulterior purpose or it may entail actual knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes; or alternatively, it may involve intent to bring about certain consequences, if the formation of that intent involves more complex thought and reasoning processes: Tatton, at paras 38-39. In the end, the root issue, as required in Suresh, was the BNP’s intention to cause death or serious injury to civilians, proven on a standard of “reasonable grounds to believe”. The IAD reached that conclusion in this case.
[65] The IAD was aware of the status of the BNP as a legitimate political party and the need to ensure that legitimate political activities such as protests, without violence, are not considered acts of terrorism: see AK, at para 41 (cited by the IAD); Rana, at para 65; Kamal, at para 55. The IAD’s factual findings with respect to intended violence were sufficient to distinguish legitimate political activities from activities that amounted to terrorism under paragraph 34(1)(f).
[66] The applicant argued that the IAD failed to consider the factors set out in MN that may lead to the conclusion that a political party engaged in acts of terrorism: MN, at para 12 (quoted at paragraph 51 above). I do not agree. The IAD considered the circumstances in which the violent acts were committed; the internal structure of the BNP – specifically its leadership personnel, its Steering Committee, and its student wings used to execute hartals; and the knowledge of the BNP leadership and its failure to publicly denounce the violence. As such, the present case is different from the decision under review in MN, which had focused exclusively on one of the various factors identified by the Court: MN, at para 12.
[67] The applicant contended that that the IAD failed to account for his written submission on the absence of control by the IAD leadership over its members. However, the IAD recognized and addressed his submission that the BNP was not in a position to lead protests, control its crowd or give directions and instructions, and concluded it was not borne out by the evidence. The IAD also considered the argument tha