Bitaraf v. Canada (Minister of Citizenship and Immigration)

BETWEEN:

BABAK BITARAF

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

PHELAN J.

NATURE OF PROCEEDINGS

[1] This application for judicial review raises issues concerning the interpretation and application of the exclusion found in Article 1F(c) of the United Nations Convention Relating to the Status of Refugees (the Convention). For the reasons set forth this application must be granted.

[2] The effect of Article 1F(c) of the Convention is to exclude from admission to Canada those persons who fall within the category of a person "guilty of acts contrary to the purposes and principles of the United Nations".

[3] The pertinent legislative provisions are:

a) Section 98 of the Immigration and Refugee Protection Act (the Act):

b) Section 1F of the Convention:

[4] Mr. Bitaraf (the applicant), was found to be a person in need to protection as he would be facing a serious possibility of torture or risk to his life of cruel and unusual punishment if he were returned to Iran.

[5] Despite this finding of serious possibility of great harm or even death, the Immigration and Refugee Board (the Board) concluded that the applicant was to be returned to Iran because he was an excluded person under Article 1F(c) of the Convention resulting from his involvement in the Mujahadin movement.

BACKGROUND

[6] The applicant is a 33 year old Iranian male citizen who fled Iran in 2000 to Canada where he has a brother and sister. He sought protection on his arrival.

[7] While the applicant had some contact with the Mujahadin (MEK) in 1987, he did not become active until 1998.

[8] In the interim, his brother who was a sympathiser of the MEK became involved in distributing pamphlets for the MEK. Following the brother's arrest and detention in Iran the brother fled to Canada where he obtained refugee status despite his distributing pamphlets for the MEK.

[9] In 1994 the applicant's sister left Iran because of her political activities within the MEK, arrived in Canada and obtained refugee status on the basis of her political activities.

[10] In 1998 the applicant, at the urging of his brother's friend Akhaven, became active in the MEK solely by distributing pamphlets and writing pro-Mujahadin slogans. He worked for an individual named Shanavari.

[11] In early 2000 the applicant was arrested by Iran authorities, threatened with torture and under pressure revealed the name of his contact, Shanavari, who was reportedly arrested thereafter.

[12] The applicant now also feared for his safety from the MEK. Through his father's contacts he was released and fled to Canada.

[13] The Board conducted a hearing at which the only issue was whether the applicant was subject to exclusion. The Board, as indicated earlier, accepted that he faced a serious possibility of torture or death if he was returned.

[14] In reaching its conclusion that the applicant was aware of terrorist activism, took no actions to withdraw his services and thus was an accomplice, the Board relied on four responses by the applicant:

1) that he listened to television and radio and read newspapers;

2) that he was aware of the Mujahadin's terrorist attacks within Iran and on thirteen Iranian embassies outside Iran;

3) that he admitted he continued to help the Mujahadin "even if (sic) he was aware of their terrorist attacks". (Note that the transcript does not contain exactly this admission).

4) that he took no steps to stop the terrorist activities or withdraw or stop his support of this terrorist group. (Note again that the transcript does not contain exactly this admission).

[15] The Board made the finding that the applicant was an accomplice of the MEK and that the MEK was a terrorist organization.

[16] In so doing the Board made no finding on the applicant's credibility but given the acceptance of the answers relied upon, credibility does not appear to have been in issue.

ANALYSIS

[17] The standard of review applicable in this application is dependent on the issue being considered. As to the Board's findings of fact, including those related to the four responses set forth in paragraph 14, the standard is patent unreasonableness. Conkova v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 300 (T.D.).

[18] With respect to the interpretation of Article 1F(c) of the Convention the standard is correctness but with respect to the application of the law to the facts, the standard is reasonableness.

[19] Having said that, in addition the Board must give reasons in clear and unmistakable terms which show a thorough consideration of the facts and relevant issues. Hilo v. Canada (Minister of Employment and Immigration) 15 Imm.L.R.(2d) 1999.

[20] That requirement is even greater where the consequences are potentially so dire. In this instance the Board found that there was a serious possibility of torture or death if the applicant was returned to Iran. Given that the Board was handing down what could ultimately be a death sentence, a decision which they can and must make in the appropriate circumstances, the decision must show a clearer grasp of all of the relevant facts and issues.

[21] In a consideration of Article 1F, the Board need only find a "serious reason for considering" that the person falls within the exclusionary category. That standard has been held to be less than a balance of probabilities. See Canada (MCI) v. Gholam Hassan Hajialikhani [1999] 1 F.C. 181.

[22] However the Board when considering a claim under Article 1F(c) ought to have identified which purposes and principles of the United Nations were at issue. In its analysis, the Board followed the approach used for Article 1F(a) without addressing whether that was an appropriate analysis in which to engage.

[23] While the Board did not refer to the purposes and principles of the United Nations, the Supreme Court in Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982, (a case better known for standard of review than its findings of fact and law), addressed those purposes and principles as follows:

In the light of the general purposes of the Convention, as described in Ward, and elsewhere, and the indications in the traveaux préparatoires as to the relative ambit of Article 1F(a) and F(c), the purpose of Article 1F(c) can be characterized in the following terms: to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting.

[24] Justice Bastarache of the Supreme Court held that two categories of acts would qualify as being contrary to the purposes and principles of the United Nations: (i) those acts which have been expressly determined by the United Nations or the International Court of Justice to be contrary to the purposes and principles of the United Nations and (ii) certain types of serious, sustained and systemic violations of human rights constituting persecution.

[25] It was therefore open to the Board to find as it did, that the MEK is a terrorist organization even though some of its goals were lofty democratic and consistent with international principles. (See Poshtel v. Canada (Minister of Citizenship and Immigration) (IMM-1357-03). Organizations such as the MEK, particularly as their tactics evolve or change over various time periods raise difficult issues as to when armed resistance against oppressive regimes become terrorism.

[26] However in order to make a finding under Article 1F(c), given its potential breadth, the Board ought to have had regard for such matters as United Nations Security Council Resolution 1377 both as regards the MEK and more importantly the specific conduct of the applicant. The Board, at the very least, must articulate which of the two categories of acts referred to by Justice Bastarache.

[27] Having determined that the MEK is a terrorist organization, the Board ought to then have properly considered whether the applicant was "guilty of acts" contrary to United Nations principles and purposes. The focus of Article 1F(c) is the commission of acts whereas Articles 1F(a) and (b) focus on the commission of crimes.

[28] This Court has held that generally mere membership in an organization is insufficient to incur exclusion (except where the organization is one of limited brutal purpose) and absence of membership is likewise insufficient where there is personal and knowing participation. See Bazargan v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 1209; Canada (Minister of Citizenship and Immigration) v. Hajialikhani [1999] 1 F.C. 181.

[29] It is essential that the Board focus on the specific acts of the person, their nature, quality and the circumstances thereof and the relationship of those acts to the offending acts or practices of the subject organization.

[30] In order to find the applicant to be an accomplice, the Board had to address whether he had the shared common purpose with the MEK and whether there was personal and knowing participation in the organization. (See Ramirez v. Canada (Minister of Employment and Immigration) [1992] 2 F.C. 306 (C.A.); Moreno v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 298 (C.A.).

[31] While the Board is entitled to great deference in its fact finding and application of fact and law, I find that the decision does not meet the standard set forth in Hilo, supra.

[32] As indicated earlier the Board made no adverse credibility finding yet seemed to ignore such matters as the applicant's reasons for involvement with the MEK, his degree of involvement, his knowledge of their actions and when he acquired that knowledge, his alternative sources of knowledge and the surrounding circumstances and the parallel actions of his brother and sister.

[33] The applicant's evidence was that he became involved in 1998 with the MEK because of their goal of establishing a democratic regime, providing freedom of expression and fostering human rights. He did not share the goal of armed conflict and when those incidents first arose he questioned whether the MEK committed the acts because he did not share the belief in the use of violence.

[34] The applicant's only involvement with the MEK was distributing leaflets and writing slogans over a period of 18 months. This type of involvement and the legal consequences of it were hardly touched upon by the Board yet these are the very acts upon which it is held that he acted contrary to purposes and principles of the United Nations.

[35] The Board held that if a person is aware of the terrorist actions of an organization and takes no actions to withdraw, he is an accomplice. The Board failed to ask itself in respect of the applicant "what did he know and when did he know".

[36] The Board relied upon the fact that the applicant read newspapers, watched television and listened to the radio without considering whether these media outlets were subject to government control. The knowledge expected of a person with access to an open media is quite different to that expected of a person with access only to government controlled news output, particularly under what has been termed a "repressive" regime.

[37] The unchallenged evidence is that some of the incidents blamed on the MEK (but by no means all) were committed by agents of the Iranian government. Because the applicant did not share these violent views, he questioned his only alternate source of information, his friends with respect to the veracity of what was reported in the government controlled media. The fact that he was mislead by them as to some events was never challenged by the Board.

[38] The transcript also shows that the applicant's knowledge of some of the terrorist acts was acquired while he was in prison in 2000. The Board made no attempt to distinguish between his state of knowledge at the time he was supporting the MEK and his state of knowledge at the time of his hearing.

[39] The so-called admissions relied upon by the Board are tainted with this failure to distinguish his state of knowledge and by putting questions which were based on his newly acquired knowledge of the terrorist acts of the MEK.

[40] For example the applicant's admission that he continued to help the Mujahadin even after he was aware of the terrorist acts is set against the evidence that to his knowledge these acts had been committed by the government and blamed on the Mujahadin. Having heard the government's allegation that the Mujahadin had perpetrated the acts, the applicant inquired of his alternate sources and was assured that the allegation was untrue. To then rely upon the answers as evidence that he knowingly supported and participated in terrorist acts is patently unreasonable because at the time he did not know that the Mujahadin had committed the terrorist acts.

[41] Therefore I find that the Board's findings of fact as to the applicant's personal and knowing participation are patently unreasonable. Likewise I conclude that the finding that the applicant was an accomplice is unreasonable, indeed patently unreasonable.

[42] As indicated earlier I also find that the Board erred in law as to its legal analysis and sufficiency of reasons.

[43] For these reasons this application will be allowed, the Board's decision will be quashed and the matter remitted back to the Board to be heard by a differently constituted panel.

[44] As the issue of a certified question was left open, counsel for the respondent will have seven (7) days from the issuance of these reasons to serve and file submissions as to a question, the applicant will have seven (7) days to serve and file a response with a further three (3) days for the respondent's reply, following which an order will issue.

(s) "Michael L. Phelan"

J.F.C.

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-1609-03

STYLE OF CAUSE: BABAK BITARAF v. MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: February 24, 2004

REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Phelan

DATED: June 23, 2004

APPEARANCES:

Ms. Winnie Lee FOR THE APPLICANT

Mr. Marcel Larouche FOR THE RESPONDENT

SOLICITORS OF RECORD:

Ms. Winnie Lee

Toronto, Ontario FOR THE APPLICANT

Mr. Morris Rosenberg

Deputy Attorney General

Toronto, Ontairo FOR THE RESPONDENT