Last updated on October 4th, 2021
Last Updated on October 4, 2021 by Steven Meurrens
As many immigration lawyers have commented, under Canadian immigration law, 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), 2015 FC 1184:
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, the Federal Court of Canada has consistently held that the definition has a broad meaning.
In Chiau v Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal held that being a “member” simply means “belonging” to an organization. Actual or formal membership in an organization is not required. 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 Federal Court decisions have held that if membership is admitted then it is membership for all purposes, regardless of someone’s involvement in the organization.
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, 2016 FC 826.
Indeed, in the 2014 Federal Court of Appeal decision in Najafi v Canada (Public Safety and Emergency Preparedness), 2014 FCA 462, the Federal Court of Appeal ruled that s. 34 of the IRPA 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.
What if someone only becomes a member of an organization that has committed terrorist activities after that group has stopped committing these activities? Are they still inadmissible?
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.
However, there is an exception for organizations that have undergone a fundamental change. This principle was affirmed in Abdullah v. Canada (Citizenship and Immigration), 2021 FC 949. There, the Court stated that s. 34(1)(f) of the IRPA may not apply to an organization that has undergone a fundamental change in circumstances, such as one that “has transformed itself into a legitimate political party and has expressly given up any form of violence.”
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 when 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. The FCA stated:
The Immigration Division found that Mr. Poshteh continued his activity with the MEK until he was 17 years and 11 months. Where a minor of that age knows of the violent activity of the organization, becomes involved of his own volition, continues for over two years and leaves only after he is arrested, it cannot be said that it is unreasonable for the Immigration Division not to accept his arguments based on his status as a minor and to find him to be a member of the terrorist organization.