Najafi v. Canada (Minister of Public Safety and Emergency Preparedness), (2013) 438 F.T.R. 135 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: January 16, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 438 F.T.R. 135 (FC);2013 FC 876

Najafi v. Can. (2013), 438 F.T.R. 135 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. SE.007

Behzad Najafi (applicant) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(IMM-3103-12; 2013 FC 876; 2013 CF 876)

Indexed As: Najafi v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

Gleason, J.

August 16, 2013.

Summary:

Najafi was a citizen of Iran of Kurdish ethnicity. He came to Canada and made a refugee claim that was accepted. The Minister of Public Safety and Emergency Preparedness made a report under s. 44(1) of the Immigration and Refugee Protection Act and sought to have Najafi declared inadmissible due to his involvement in the Kurdish Democratic Party of Iran (KDPI). The Immigration Division of the Immigration and Refugee Board determined that Najafi was inadmissible where there were reasonable grounds to believe that he was or had been a member of the KDPI and the KDPI had engaged in subversion by force of two different governments in Iran. The Board issued a deportation order. Najafi applied for judicial review.

The Federal Court dismissed the application. The court certified the following question for determination: "Do Canada's international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration, and Refugee Protection Act, SC 2001, c 27, to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people's claimed right to self-determination?"

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - Najafi was a citizen of Iran of Kurdish ethnicity - He came to Canada and made a refugee claim that was accepted - The Immigration Division of the Immigration and Refugee Board determined that Najafi was inadmissible where there were reasonable grounds to believe that he was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and the KDPI had engaged in subversion by force of two different governments in Iran - The Board issued a deportation order - Najafi applied for judicial review, asserting that the Board erred in basing its interpretation on the term "membership" in s. 34(1)(f) of the Immigration and Refugee Protection Act in part on his involvement with the KDPI in Canada - He asserted that in so doing the Division infringed his s. 2(b) Charter right to freedom of expression because the KDPI was a legal organization in Canada - The Federal Court held that Najafi's failure to advance the claim before the Board warranted its dismissal - Moreover, even if that were not the case, it was unlikely that Najafi's social activities with the KDPI in Canada would constitute an expressive act to which the guarantee of freedom of expression could apply - See paragraphs 21 and 22.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive or terrorist organization - [See Administrative Law - Topic 3345.2 ].

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive or terrorist organization - Najafi was a citizen of Iran of Kurdish ethnicity - He came to Canada and made a refugee claim that was accepted - The Immigration Division of the Immigration and Refugee Board determined that Najafi was inadmissible where there were reasonable grounds to believe that he was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and the KDPI had engaged in subversion by force of two different governments in Iran - The Board rejected Najafi's assertion that basing its interpretation of "membership" in s. 34(1)(f) of the Immigration and Refugee Protection Act, in part, on his involvement with the KDPI in Canada would infringe his s. 2(d) Charter right of freedom of association because the KDPI was a legal organization in Canada - The Federal Court dismissed Najafi's judicial review application - There was no violation of s. 2(d) because the KDPI was an organization that had engaged in violence in Iran and the Charter did not extend a constitutional right to belong or to participate in the affairs of organizations that engaged in violence - The Board premised its finding on the conclusion that the impact of the exclusion decision on Najafi was too minimal to warrant Charter protection - The court opined that that conclusion might be incorrect as the impacts of the decision on Najafi were not trivial - However, whether such negative impacts were sufficiently important to warrant Charter protection was more appropriately determined in a case where the issue squarely arose - See paragraphs 39 to 51.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive or terrorist organization - The Immigration Division of the Immigration and Refugee Board determined that Najafi was inadmissible where there were reasonable grounds to believe that he was or had been a member of the Kurdish Democratic Party of Iran (KDPI) which had engaged in subversion by force of two different governments in Iran - Najafi applied for judicial review, asserting that the Board erred in failing to appropriately apply international law principles to its interpretation of "subversion by force" in s. 34(1)(b) of the Immigration and Refugee Protection Act - The Federal Court rejected the assertion - The Board appropriately premised its decision on settled jurisprudence which held that s. 34(1)(b) proscribed those who had engaged in the subversion by force of any government regardless of the kind of government which was the target of the subversion - That lead to the conclusion that the KDPI was an organization that had attempted to subvert the government of Iran by force - There was no need for the Board to resort to international law to consider whether the well-settled interpretation of s. 34(1)(b) ought to be discarded in Najafi's case in light of the clarity of the Act's provisions - The presumption that parliament intended to act in accordance with international law and, more particularly, with Canada's international law obligations was a rebuttable one that could be ousted by clear statutory wording - Even if the Board erred in not considering international law, international law principles would not support Najafi's claim to exclude the KDPI from the purview of s. 34(1)(b) - See paragraphs 63 to 80.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive or terrorist organization - The Immigration Division of the Immigration and Refugee Board determined that Najafi was inadmissible where there were reasonable grounds to believe that he was or had been a member of the Kurdish Democratic Party of Iran (KDPI) which had engaged in subversion by force of two different governments in Iran - Najafi applied for judicial review, asserting that the Board erred in finding him to be a member of the KDPI given that he was never a formal member and only performed a limited number of activities on its behalf - He testified that while in Iran, he collected medicines and monies for the KDPI and, on a few occasions, delivered pamphlets on its behalf and that while in Canada he participated in social and cultural activities - The Federal Court dismissed the application - The Board was to be granted considerable deference in terms of its membership findings as was evidenced by the applicable reasonableness standard of review - Further, the concept of membership was to be interpreted broadly such that various levels and degrees of involvement falling short of formal membership could give rise to a membership determination - The Board's finding was within the range of possible conclusions open to the Board - See paragraphs 81 to 84.

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - [See fourth Aliens - Topic 1747 ].

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - Najafi was a citizen of Iran of Kurdish ethnicity - He came to Canada and made a refugee claim that was accepted - The Immigration Division of the Immigration and Refugee Board determined that Najafi was inadmissible where there were reasonable grounds to believe that he was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and the KDPI had engaged in subversion by force of two different governments in Iran - The Board rejected Najafi's assertion that basing its interpretation of "membership" in s. 34(1)(f) of the Immigration and Refugee Protection Act, in part, on his involvement with the KDPI in Canada would infringe his s. 2(d) Charter right of freedom of association because the KDPI was a legal organization in Canada - Najafi applied for judicial review - The Federal Court held that, in light of the nature of the tasks assigned to the Board under the Act and the nature of the question that it was called upon to decide, it decision respecting s. 2(d) was not a discretionary one subject to the reasonableness standard of review - The applicable standard of review was correctness - See paragraphs 25 to 38.

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - The Immigration Division of the Immigration and Refugee Board determined that Najafi was inadmissible where there were reasonable grounds to believe that he was or had been a member of the Kurdish Democratic Party of Iran (KDPI) which had engaged in subversion by force of two different governments in Iran - Najafi applied for judicial review, asserting that the Board erred in failing to appropriately apply international law principles to its interpretation of "subversion by force" in s. 34(1)(b) of the Immigration and Refugee Protection Act - The Federal Court held that the inquiry that the Board was called upon to decide had a factual component (what the KDPI did and stood for) and a legal component (the meaning of "subversion by force") - A long line of authorities indicated that the two inquiries were not to be uncoupled from each other to determine the standard of review and that the standard of reasonableness applied to both determinations - Additionally, the legal component of the question involved interpretation of the Board's constituent statute and a matter in respect of which the Board possessed considerable expertise - The decision was reviewable on the reasonableness standard - See paragraphs 57 to 61.

Civil Rights - Topic 1803

Freedom of speech or expression - Freedom of expression - Scope of - [See Administrative Law - Topic 3345.2 ].

Civil Rights - Topic 2159.1

Freedom of association - Limitations on - Association with subversive or terrorist organizations - [See second Aliens - Topic 1747 ].

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See second Aliens - Topic 1842 ].

Statutes - Topic 526

Interpretation - General principles - Consistency with comity of nations or international law - [See third Aliens - Topic 1747 ].

Cases Noticed:

Stables v. Canada (Minister of Citizenship and Immigration) (2011), 400 F.T.R. 135; 2011 FC 1319, refd to. [para. 9].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 16].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2006), 304 F.T.R. 222; 2006 FC 1457, refd to. [para. 16].

Al Yamani v. Canada (Solicitor General) et al., [1996] 1 F.C. 174; 103 F.T.R. 105 (T.D.), refd to. [para. 17].

Toussaint v. Conseil canadien des relations du travail et al. (1993), 160 N.R. 396; 42 A.C.W.S.(3d) 288 (F.C.A.), refd to. [para. 21].

Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233; 96 N.R. 34; 58 D.L.R.(4th) 475 (F.C.A.), refd to. [para. 21].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 22].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, dist. [para. 25].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 27].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 32].

Whatcott v. Human Rights Tribunal (Sask.) et al. (2013), 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 33].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 39].

R. v. Advance Cutting & Coring Ltd. et al., [2001] 3 S.C.R. 209; 276 N.R. 1; 2001 SCC 70, refd to. [para. 39].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 40].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 40].

Fraser et al. v. Ontario (Attorney General), [2011] 2 S.C.R. 3; 415 N.R. 200; 275 O.A.C. 205; 2011 SCC 20, refd to. [para. 40].

Oremade v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 652; [2006] 1 F.C.R. 393; 2005 FC 1077, refd to. [para. 48].

Suleyman v. Canada (Minister of Citizenship and Immigration) (2008), 330 F.T.R. 205; 2008 FC 780, refd to. [para. 48].

Eyakwe v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 245; 200 A.C.W.S.(3d) 1123; 2011 FC 409, refd to. [para. 48].

Maleki v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 62; 211 A.C.W.S.(3d) 172; 2012 FC 131, refd to. [para. 48].

Faridi v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 578; 168 A.C.W.S.(3d) 1038; 2008 FC 761, refd to. [para. 57].

Naeem v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 658; 308 F.T.R. 256; 2007 FC 123, refd to. [para. 57].

Jalil v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 138; [2006] 4 F.C.R. 471; 2006 FC 246, refd to. [para. 57].

Kanendra v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 546; 47 Imm. L.R.(3d) 265; 2005 FC 923, refd to. [para. 57].

Hussain v. Canada (Minister of Citizenship and Immigration), 2004 FC 1196, refd to. [para. 57].

Kastrati v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 815; 172 A.C.W.S.(3d) 180; 2008 FC 1141, not folld. [para. 57].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 58].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 58].

Canada (Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 58].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 58].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 58].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

B010 v. Canada (Minister of Citizenship and Immigration) (2013), 443 N.R. 1; 2013 FCA 87, refd to. [para. 60].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 66].

Oremade v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 706; 155 A.C.W.S.(3d) 389; 2006 FC 1189, refd to. [para. 69].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 70].

Daniels v. White, [1968] S.C.R. 517; 2 D.L.R.(3d) 1, refd to. [para. 70].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [para. 72].

Pfizer Canada Inc. v. Canada (Attorney General) (2003), 301 N.R. 376; 24 C.P.R.(4th) 1; 2003 FCA 138, refd to. [para. 72].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 75].

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 252 D.L.R.(4th) 316; 2005 FCA 85, refd to. [para. 82].

Ismeal v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] F.T.R. Uned. 121; 185 A.C.W.S.(3d) 708; 2010 FC 198, refd to. [para. 82].

Qureshi v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 4; 174 A.C.W.S.(3d) 809; 2009 FC 7, refd to. [para. 82].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 83].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 88].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 88].

Di Bianca v. Canada (Minister of Citizenship and Immigration) (2002), 224 F.T.R. 168; 2002 FCT 935, refd to. [para. 88].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 34(1) [para. 64].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, No. 78, 1st Sess., 37th Parliament (June 13, 2001), p. 5099 [para. 67].

Hansard - see Canada, Hansard, House of Commons Debates.

Counsel:

Lorne Waldman and Tamara Morgenthau, for the applicant;

David Cranton and Sophia Karontonis, for the respondent.

Solicitors of Record:

Waldman and Associates, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on January 16, 2013, by Gleason, J., of the Federal Court, who delivered the following reasons for judgment on August 16, 2013.