Date: 20041103
Docket: IMM-1819-02
Citation: 2004 FC 1548
Ottawa, Ontario, this 3rd day of November, 2004
PRESENT: The Honourable Justice Eleanor R. Dawson
BETWEEN:
LUCY EASTWOOD DENTON-JAMES
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] On April 3, 2002, the Immigration Appeal Division of the Immigration and Refugee Board ("panel") dismissed Ms. Denton-James' appeal from a decision of a visa officer. The visa officer had refused the sponsored application for permanent residence made by Scott Denton-James, Ms. Denton-James' husband, because he was found to be described in subparagraphs 19(1)(f)(iii)(B) and 19(1)(e)(iv)(C) of the Immigration Act, R.S.C. 1985, c. I-2 ("relevant statutory provisions") and so to be inadmissible.
[2] The relevant statutory provisions make inadmissible "persons who there are reasonable grounds to believe ... are or were members of an organization that there are reasonable grounds to believe is or was engaged in ... terrorism" and "persons who there are reasonable grounds to believe ... are members of an organization that there are reasonable grounds to believe will ... engage in terrorism". The visa officer had found that there were reasonable grounds to believe that Mr. Denton-James was or is a member of Combat 18 and that there were reasonable grounds to believe that this organization is engaged, or was engaged, or will engage in terrorism.
[3] At the appeal, the panel considered both the public record and the confidential record which had been before the visa officer. The panel also received additional evidence. The panel dismissed the appeal, holding that Mr. Denton-James was properly described in the relevant statutory provisions and that humanitarian and compassionate circumstances warranting special relief did not exist. This application for judicial review is brought in respect of that decision.
The Decision of the Panel
[4] Combat 18 is acknowledged to be an extreme right-wing, white supremacist, organization. The number 18 derives from the numerical position in the alphabet of the initials of Adolf Hitler. The panel found that "the objectives, use, and mode of violence of Combat 18, as described in the Record, aimed at specific non-white/non-heterosexual civilian populations, are illegitimate and terrorist in nature. The materials establish there are reasonable grounds to believe Combat 18 is or was a terrorist organization".
[5] Addressing the issue of membership in the organization, the panel wrote:
In addressing a person's membership in an organization, I have considered Federal Court jurisprudence, including Chiau v. Canada (M.C.I.), Canada (M.C.I.) v. Mahjoub, and Ahani v. Canada. As with the term "terrorism", the term "member" is also to be given an unrestricted and broad interpretation. It cannot be limited to actual or formal membership coupled with active participation in an unlawful act nor is it to be limited to a card-carrying member whose name appears on a membership list, where both the card and the list are clearly identified and admitted in evidence. [footnotes omitted]
[6] In discussing the evidence before it, the panel observed that the evidence "arises from a variety of independent sources, including the applicant's own statements to various officials and confidential material disclosed to the Appeal Division". The panel then reviewed Mr. Denton-James' testimony before the panel and considered at length what were said to be differing accounts he had provided as to his knowledge of, and association with, various members of Combat 18. The panel then concluded:
The inconsistency in the applicant's statements to officials throughout the relevant period, his admitted association with members of Combat 18 for a prolonged period beginning in 1994, his admission he was a "hanger-on" of right-wing groups in his teen years, his acknowledgment he re-involved himself with these groups after his discharge from the British Army and continued his association with Combat 18 members at least until 1996 (depending upon the reliability of his statement his most recent contact with Charlie Sargent was in 1996), his evasive manner at hearing in key areas of personal contact with the group's leader, and contents of the confidential information disclosed to the Appeal Division, lead me to conclude there are reasonable grounds to believe the applicant is or was a member of Combat 18, a group there are reasonable grounds to believe is or was engaged in terrorism.
The Asserted Errors
[7] Ms. Denton-James asserts that, in reaching its decision, the panel erred in law:
1. In its interpretation of the term "membership".
2. In its findings of fact with respect to membership.
3. In concluding there was sufficient evidence to justify a finding that Combat 18 had engaged, or was likely to engage, in acts of terrorism.
[8] In oral argument, counsel for Ms. Denton-James withdrew the argument that the panel erred in concluding that there were no humanitarian or compassionate considerations which warranted the exercise of the panel's discretionary jurisdiction.
Analysis
(i) Did the panel err in its interpretation of the term membership?
(ii) Did the panel err in its findings of fact with respect to membership?
[9] Ms. Denton-James argues that the panel's reasons are devoid of any analysis of the term "member", and that it is not possible to see how the panel applied or understood the term. Additionally, Ms. Denton-James argues that the evidence fell short of that sufficient to justify a finding of membership. She says that the evidence showed that her husband knew several members of Combat 18, that he socialized with them, that he visited the leader twice and that he called the leader once from Canada. There was no evidence of any common purpose or shared activities.
[10] While Ms. Denton-James acknowledges that the jurisprudence is to the effect that the term "member" is to be given a broad interpretation, she argues that there still must be a nexus between the person's membership and responsibility for the acts of the organization. She says that there is nothing in the jurisprudence which would justify a finding that membership can be based on a loose friendship with individuals who are members of the organization, absent any evidence that the person was actively engaged in, or in some fashion contributing to, the ongoing work of the organization. Finally, Ms. Denton-James argues that the panel erred in law because it failed to explain the basis for its conclusion, failed to provide any analysis of the jurisprudence to sustain its conclusion, and failed to provide any insight into the reason why it concluded that her husband was a member of Combat 18.
[11] I initially found this last argument to be very persuasive. However, on a closer review of the relevant jurisprudence, I am satisfied that the panel did not err.
[12] With respect to the interpretation of the term "member", as correctly noted by the panel, the jurisprudence is clear that the word is to be given an unrestricted and broad interpretation. See for example Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 where Mr. Justice Rothstein wrote as follows at paragraphs 49 through 52:
49. Does this close association constitute membership for purposes of subparagraph 19(1)(f)(iii)(B)? The respondent takes a narrow view of membership. The Ministers take a broad view. The respondent says that friendship with others in an organization is insufficient to prove membership in the organization. He submits that membership in an organization of the type referred to in subparagraph 19(1)(f)(iii)(B) commences with a person being a sympathizer of a cause. Eventually if a mutual trust is established, the person may become a member of a core group which is committed to the organization and dedicated to achieving its goals. The respondent submits that the reference to "member" in subparagraph 19(1)(f)(iii)(B) only applies to persons who are part of the core group of the organization. The respondent also submits that the membership envisaged by this subparagraph is membership when the organization was engaged in terrorism. If a person joined the organization after the organization had stopped engaging in such activities, that is not the type of membership intended by these provisions.
50. The Ministers say that the term member is unambiguous and unrestricted and should be given its ordinary meaning. The Ministers refer to evidence of the Director of Internal Policy for the Department of Employment and Immigration given in 1992 before a parliamentary committee to the effect that the intent in drafting subparagraph 19(1)(f)(iii)(B) (and other provisions) was to "define broadly with a discretion" in the Minister of Citizenship and Immigration to exclude from the provision if, in the Minister's opinion, it would not be detrimental to the national interest.
51. While I do not rely on the opinion of the draftsman or the draftsman's advisor in construing this Act of Parliament, my conclusion, based on the context of the provisions in question, is that the term "member" is to be interpreted broadly.
52. The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable. The Minister of Citizenship and Immigration may, if not detrimental to the national interest, exclude an individual from the operation of subparagraph 19(1)(f)(iii)(B). I think it is obvious that Parliament intended the term "member" to be given an unrestricted and broad interpretation. I find no support for the view that a person is not a member as contemplated by the provision if he or she became a member after the organization stopped engaging in terrorism. If such membership is benign, the Minister has discretion to exclude the individual from the operation of the provision.
[13] In Chiau v. Canada (Minister of Citizenship and Immigration) [1998] 2 F.C. 642 (T.D.), Mr. Justice Dubé rejected the position that the term "member" required actual or formal membership coupled with active participation. Rather, being a "member" means "belonging". On appeal, cited below, the Federal Court of Appeal said that, by equating being a "member" with "belonging to", Justice Dubé had correctly concluded that the term "member" should be broadly understood.
[14] The panel therefore correctly set forth the test at law for membership. The panel relied upon a number of factors which it listed when it determined that there were reasonable grounds to believe Mr. Denton-James was a member of Combat 18, including the confidential information. When the content of the confidential information is considered, I have no doubt that the panel's conclusion was not based simply upon a loose friendship with members of the organization.
[15] In Chiau v. Canada (Minister of Citizenship and Immigration) [2001] 2 F.C. 297 (C.A.), the Federal Court of Appeal wrote as follows at paragraphs 56 and 57:
56. Whatever difficulties there might have been in supporting the visa officer's decision on these issues on the basis of the public record alone, when the content of the secret affidavits is considered there can be no doubt that, on any plausible meaning of the term "members" in the context of paragraph 19(1)(c.2) of the Act, there were reasonable grounds for the officer to believe that Mr. Chiau was a member of the triad.
57. It is not, therefore, either necessary, or helpful, to say much more about the meaning of the term "members" for the purpose of paragraph 19(1)(c.2). However, by equating being a "member" with "belonging to" a criminal organization, the Trial Division Judge correctly concluded that, in this context, the term should be broadly understood.
[16] In this case, I am similarly satisfied from a review of the confidential information that, on any plausible meaning of the term "member", there were reasonable grounds for the visa officer and the panel to believe that Mr. Denton-James is or was a member of Combat 18.
(iii) Did the panel err in law in concluding that there was sufficient evidence to justify a finding that Combat 18 had engaged or was likely to engage in acts of terrorism?
[17] Ms. Denton-James relies upon the following passage from Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 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".
[18] Ms. Denton James argues that this the test that should have been applied by the panel. She further submits that while the objectives and activities of Combat 18 might be described as violent, illegal and criminal, they are not "terrorist" activities within the definition articulated by the Supreme Court of Canada.
[19] Ms. Denton-James does not dispute the violent nature of Combat 18. The activities of Combat 18 cannot be considered in isolation of the group's objectives. In coming to its conclusion, the panel relied on a considerable amount of material regarding the objectives and activities of Combat 18. When the violent nature of the organization is seen in the context of the objectives of the group, including the "elimination of non-white, mixed race, and homosexual populations", I am persuaded that the panel's finding that Combat 18 is or was engaging in acts of terrorism, was in accord with the definition of terrorism articulated in Suresh and that the finding was not patently unreasonable.
[20] It follows that the application for judicial review should be dismissed.
Certification of a Question
[21] The Minister posed the following questions for certification:
Pursuant to IRPR s. 350(5), is the redetermination of an IAD decision made prior to June 28, 2002 and quashed by the Court after that date, carried out under the former Immigration Act or under IRPA?
If the redetermination of the IAD decision is carried out under IRPA are sections 64(1) and 196 a statutory bar to the IAD rehearing this matter?
[22] In my view, these questions constitute a collateral attack on the interlocutory decision of Madam Justice Snider which held that this matter is not moot on that the ground that the panel would be precluded from redetermining the application because of the operation of section 64 and section 196 of the Immigration and Refugee Protection Act, S.C. 2001, c.27. The effect of those sections was not before me on this application and they are irrelevant in view of my conclusion that the application for judicial review should be dismissed.
[23] I am satisfied that no question arises on this record and no question will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
"Eleanor R. Dawson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1819-02
STYLE OF CAUSE: Lucy Eastwood Denton-James and the Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 28, 2004
REASONS FOR ORDER AND ORDER THE HONOURABLE JUSTICE ELEANOR R. DAWSON
APPEARANCES:
Mr. Lorne Waldman FOR APPLICANT
Mr. John Loncar FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates FOR APPLICANT
Toronto, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada