Membership in a Group that Once Committed Terror

Photo by Jerome Valliant on Flickr.
Photo by Jerome Valliant on Flickr.

The use of the image of the Millennium Falcon in the image above is no accident.  As many immigration lawyers have commented, Luke Skywalker, Han Solo, and probably all of the Jedi would be inadmissible to Canada.  As Justice Diner noted in Maqsudi v. Canada (Public Safety and Emergency Preparedness):

Although I am highly sympathetic to the Principal Applicant’s position and recognize the potential absurdity in denying refugee status to an individual on the basis of his efforts to combat organizations that Canada opposed as well, I am nonetheless bound to apply the jurisprudence of our Court of Appeal.

Section 34 of the Immigration and Refugee Protection Act (the “Act“) provides that an individual is inadmissible for security reasons if they:

(a) engaged in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;

(b) engaged in or instigating the subversion by force of any government;

(c) engaged in terrorism;

(d) are a danger to the security of Canada;

(e) engaged in acts of violence that would or might endanger the lives or safety of persons in Canada; or

(f) were a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).

In other words, someone can be inadmissible to Canada for being a member of an organization of which there are reasonable grounds to believe engaged in acts of terrorism, committed subversion by force, etc.

What is Membership? 

Although Canadian immigration legislation does not define what it means to be a “member” of an organization, it has consistently been held to have a broad meaning.

In Chiau v Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal has held that being a member simply means “belonging” to an organization.  Actual or formal membership in an organization is not required and informal participation or support for an organization may suffice.  The factors relevant for deciding whether or not an applicant is a member of an organization are an individual’s intentions, degree of involvement and degree of commitment to the organization.

Complicity or knowing participation in an act of terrorism is not a requirement for membership.  Indeed, some courts have held that if membership is admitted then it is membership for all purposes, regardless of someone’s involvement in the organization.

Splinter Groups

As well, the mere fact that an organization is a splinter group of a parent organization, without more to establish its distinct identity, is sufficient to result in a finding of inadmissibility, as per the decision in Singh v. Canada.

Indeed, in 2014, the FCA issued its decision in Najafi v Canada (Public Safety and Emergency Preparedness), 2014 FCA 462, where it specifically ruled that IRPA s. 34 specifically excluded those who had attempted to subvert any government in furtherance of an oppressed people’s claimed right to self-determination, including colonial governments, foreign occupations, and oppressive regimes.  Admissible to Canada, Yoda is not.

However, what if someone only becomes a member of a group that has committed terrorist activities (for example) after that group has stopped committing these activities?

Membership Post-Terror

This was the question before the Federal Court of Appeal in Gebreab v. Canada (Public Safety and Emergency Preparedness), 2010 FCA 274.  The specific question the Federal Court of Appeal had to answer was:

Is a foreign national inadmissible to Canada, pursuant to s. 34(1)(f)of IRPA, where there is clear and convincing evidence that the organization disavowed and ceased its engagement in acts of subversion or terrorism as contemplated by s. 34(1)(b) and (c) prior to the foreign national’s membership in the organization?

The Federal Court of Appeal answered in the negative, and stated that:

It is not a requirement for inadmissibility under s. 34(1)(f) of the IRPA that the dates of an individual’s membership in the organization correspond with the dates on which that organization committed acts of terrorism or subversion by force.

The test to be shown in such cases is whether the organization was a single, continuously-existent political organization from the time of the activities giving rise to the inadmissibility, through to the time of an applicant’s membership, and beyond.  If it can be shown that it is, then the person will be inadmissible.

Membership Pre-Terror

On the other hand, the Federal Court has held that a person may not be inadmissible if they were a member in an organization before that organization started committing terrorist acts.  In El Werfalli v. Canada (Citizenship and Immigration)the Federal Court held that acts of an organization that post-date a person’s membership are not necessarily attributed to that former member.  The admissibility assessment requires an analysis as to whether, at the time of membership, there were reasonable grounds to believe that the organization would in the future engage in terrorist activities.

The FCA decisions have consistently broadened the scope of IRPA s. 34, and will only strengthen the calls for reform of the inadmissibility provisions of the Act.  Many believe that membership in a group without active involvement in the questionable activities themselves should not result in inadmissibility.  Their opinions have been strengthened by highly publicized cases, including KGB secretaries, and people who baked cupcakes for gangs, being found inadmissible to Canada.  Change is needed.

For a more detailed summary of the above I recommend reading Khan v. Canada (Citizenship and Immigration).

Membership While a Child

In Poshteh v Canada (Citizenship and Immigration), 2005 FCA 85, the Federal Court of Appeal addressed the issue of whether a person could be inadmissible to Canada if they had been a member in a terrorist organization while they were a child. The Federal Court of Appeal held that it could, and noted that if Parliament wished to exempt inadmissibility due to membership in a terrorist organization as a youth then it would have explicitly done so. However, the court further noted that just as other areas of the law involving youth have a presumption of capacity component in which the presumption of capacity increases with the age of the minor, that a child would only be inadmissible for membership in a terrorist organization if they had the requisite knowledge or mental capacity to understand the nature and effect of their actions.

 


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