Nassereddine v. Canada (Minister of Citizenship and Immigration), (2014) 446 F.T.R. 243 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: December 18, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 446 F.T.R. 243 (FC);2014 FC 85

Nassereddine v. Can. (M.C.I.) (2014), 446 F.T.R. 243 (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: [2014] F.T.R. TBEd. JA.041

Haidar Ibrahim Nassereddine (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-10493-12; 2014 FC 85; 2014 CF 85)

Indexed As: Nassereddine v. Canada (Minister of Citizenship and Immigration)

Federal Court

Strickland, J.

January 24, 2014.

Summary:

Nassereddine, a citizen of Lebanon, applied for refugee status. He admitted that he had been a member of the Amal Movement, a group that was responsible for suicide attacks against Israeli military forces, assassination bombings and other attacks against rival groups in an effort to gain control of Lebanon, and other acts of violence against Israeli and other identifiable groups with the intent of intimidating local populations. The Immigration and Refugee Board found that Nassereddine was inadmissible by reason of his membership in a terrorist organization. Nassereddine applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - Nassereddine, a citizen of Lebanon, applied for refugee status - The Immigration and Refugee Board (IRB) found that he was inadmissible by reason of his membership in a terrorist organization (the Amal Movement) - Nassereddine applied for judicial review - He submitted that Amal was a divided organization and that he worked solely in its civil wing which was not involved in terrorist activities - The Federal Court dismissed the application - Apart from Nassereddine's testimony, there was no evidence of the existence of a civil defence branch of Amal - The fact that the IRB did not dispute Nassereddine's claim that he belonged to the civil branch did not mean that it "arguably acknowledged" that Amal was a divided entity - The presumption that a claimant's sworn testimony was true was always rebuttable and might be rebutted by the failure of documentary evidence to mention what one would normally expect it to mention - Even if the IRB found Nassereddine to be credible, it was entitled to give more weight to the documentary evidence - In any event, the test for inadmissibility was met based on Nassereddine's admission of membership in Amal - See paragraphs 36 to 47.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - Nassereddine, a citizen of Lebanon, applied for refugee status - The Immigration and Refugee Board (IRB) found that he was inadmissible by reason of his membership in a terrorist organization known as the Amal Movement (Immigration and Refugee Protection Act, s. 34(1)(f)) - Nassereddine applied for judicial review - He admitted his membership in Amal, but argued that having a membership card did not make one a "member" within the meaning of s. 34(1)(f) - The Federal Court dismissed the application - Based on a broad interpretation of s. 34(1)(f) and Nassereddine's admitted membership, the IRB reasonably found that he was a member of Amal and, therefore, it was not required to consider and weigh the various criteria of membership - In any event, Nassereddine had a long membership in Amal, financially benefited from his work with them, was not recruited or coerced into joining, and was aware of at least some of their terrorist activities - The IRB's finding as to membership was therefore within the range of possible outcomes - See paragraphs 48 to 61.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - Nassereddine, a citizen of Lebanon, applied for refugee status - The Immigration and Refugee Board (IRB) found that he was inadmissible by reason of his membership in a terrorist organization known as the Amal Movement (Immigration and Refugee Protection Act, s. 34(1)(f)) - Nassereddine applied for judicial review - He argued that Ezokola (2013 SCC), which restated the test for exclusion from refugee protection for complicity in war crimes under Article 1F(a) of the Refugee Convention, had the effect of changing the legal test for assessing membership in terrorist organizations under s. 34(1)(f), since both tests involved the concept of complicity - The Federal Court rejected this argument and dismissed the application - Nassereddine admitted his membership in Amal, so this was not a situation of complicity arising from association or "indirect contact" with a terrorist group - Further, the requirement for complicity in connection with the conduct of acts of terrorism was removed from a s. 34(1)(f) analysis by virtue of s. 34(1)(c), whereby inadmissibility arose from an individual "engaging in terrorism" - Despite this, the court found that Nassereddine's submissions on this issue had some merit in that complicity might arguably be implicit in a finding of membership under s. 34(1)(f) - The court stated that "If Ezokola does change the legal test for assessing membership in a terrorist organization for purposes of assessing admissibility under subsection 34(1)(f) such that, regardless of admitted membership, individuals must be assessed so as to determine whether there was a voluntary, significant and knowing contribution to the terrorist group in issue, that is, complicity with the group, then this would affect the finding of the IRB and of this Court and would be dispositive of the appeal. ... I certify the following question: Does Ezokola ... change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing admissibility under subsection 34(1)(f) of the IRPA, whether such membership is admitted or not?" - See paragraphs 62 to 81.

Aliens - Topic 1856

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Evidence and proof - [See first Aliens - Topic 1747 ].

Cases Noticed:

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 11].

Fuentes v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 249; 231 F.T.R. 172 (T.D.), refd to. [para. 11].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2006), 304 F.T.R. 222; 2006 FC 1457, refd to. [para. 12].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 14].

Amaya v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 362; 2007 FC 549, refd to. [para. 14].

Jilani v. Canada (Minister of Citizenship and Immigration) et al., [2008] F.T.R. Uned. 560; 2008 FC 758, refd to. [para. 16].

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. 19].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 19].

Najafi v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 438 F.T.R. 135; 2013 FC 876, refd to. [para. 20].

Gonzalez v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 514; 2012 FC 1045, refd to. [para. 20].

Krishnamoorthy v. Canada (Minister of Citizenship and Immigration) (2011), 400 F.T.R. 267; 2011 FC 1342, refd to. [para. 20].

Cardenas v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 139 (T.D.), dist. [para. 23].

Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1174, dist. [para. 23].

Tharmavarathan v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 655; 2010 FC 985, refd to. [para. 24].

Toronto Coalition to Stop the War et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2010), 374 F.T.R. 177; 2010 FC 957, refd to. [para. 24].

Ezokola v. Canada (Minister of Citizenship and Immigration) (2013), 447 N.R. 254; 2013 SCC 40, refd to. [para. 26].

Joseph v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 526; 2013 FC 1101, refd to. [para. 26].

Kanapathy v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2012] F.T.R. Uned. 311; 2012 FC 459, refd to. [para. 27].

Kanendra v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 546; 2005 FC 923, refd to. [para. 27].

Sepid v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 672; 2008 FC 907, refd to. [para. 27].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, affing. (2011), 415 N.R. 121; 2011 FCA 103, refd to. [para. 32].

Bustamante v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 300; 2002 FCT 499, refd to. [para. 43].

Eminidis et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 402; 2004 FC 700, refd to. [para. 43].

Ugbazghi v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 493; 2008 FC 694, refd to. [para. 45].

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 2005 FCA 85, refd to. [para. 46].

Canada (Minister of Citizenship and Immigration) et al. v. Singh (Iqbal) (1998), 151 F.T.R. 101 (T.D.), refd to. [para. 49].

B074 v. Canada (Minister of Citizenship and Immigration) (2013), 442 F.T.R. 250; 2013 FC 1146, refd to. [para. 49].

Gebreab v. Canada (Minister of Public Safety and Emergency Preparedness) (2009), 359 F.T.R. 296; 2009 FC 1213, refd to. [para. 49].

Saleh v. Canada (Minister of Citizenship and Immigration) (2010), 363 F.T.R. 204; 2010 FC 303, refd to. [para. 50].

Sinnaiah v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 890; 2004 FC 1576, refd to. [para. 54].

T.K. v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 430 F.T.R. 63; 2013 FC 327, refd to. [para. 56].

Miguel v. Canada (Minister of Citizenship and Immigration) (2012), 414 F.T.R. 260; 2012 FC 802, refd to. [para. 70].

Tjiueza v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 833; 2009 FC 1260, refd to. [para. 75].

Zhang v. Canada (Minister of Citizenship and Immigration) (2013), 446 N.R. 382; 2013 FCA 168, refd to. [para. 79].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 34(1)(c), sect. 34(1)(f) [para. 22].

Counsel:

Richard Wazana, for the applicant;

Lorne McCleneghan, for the respondent.

Solicitors of Record:

Richard Wazana, Toronto, Ontario, for the applicant;

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

This application for judicial review was heard at Toronto, Ontario, on December 18, 2013, before Strickland, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on January 24, 2014.