Poshteh v. Canada (Minister of Citizenship and Immigration), (2005) 331 N.R. 129 (FCA)

• Judge: Rothstein, Noël, and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 20, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 331 N.R. 129 (FCA);2005 FCA 85;[2005] 3 FCR 487;252 DLR (4th) 316;331 NR 129;29 Admin LR (4th) 21;[2005] FCJ No 381 (QL);129 CRR (2d) 18

Poshteh v. Can. (M.C.I.) (2005), 331 N.R. 129 (FCA)

MLB headnote and full text

Temp. Cite: [2005] N.R. TBEd. MR.020

Piran Ahmadi Poshteh (appellant) v. The Minister of Citizenship and Immigration (respondent) and Canadian Foundation for Children, Youth and the Law (intervener)

(A-207-04; 2005 FCA 85)

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

Federal Court of Appeal

Rothstein, Noël, and Malone, JJ.A.

March 4, 2005.

Summary:

A member of the Immigration Division of the Immigration and Refugee Board (IRB) deter­mined that Poshteh was inadmissible pursu­ant to s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA) because he was a member of a terrorist organization. His involvement consisted of disseminating propaganda leaflets on behalf of the organiz­ation respecting the overthrowing of the Iranian government for approximately two years when he was a teenager. Poshteh ap­plied for judicial review, arguing, inter alia, that he was not a "member" of a terror­ist organiz­ation within the meaning of s. 34(1)(f) having regard to his age and extent of his involvement with the organization.

The Federal Court, in a decision reported 248 F.T.R. 95, dismissed the applica­tion, but certified the following question for consider­ation by the Court of Appeal.

"Having regard to s. 7 of the Canadian Charter of Rights and Freedoms and inter­national human rights instruments to which Canada is a signatory, including the Con­vention on the Rights of the Child, is there, on the particular facts underlying this application for judicial review, any distinction in liability between the appli­cant who was a minor at all times relevant to his activities on behalf of the Mujahedi- e-Khalq and an adult undertak­ing equiva­lent activities on behalf of such an organi­zation without being a formal mem­ber of that organization, for inadmissi­bility under s. 34(1) of the Immigration and Refugee Protection Act?"

Poshteh pursued the appeal.

The Federal Court of Appeal dismissed the appeal. The court held that Poshteh's age was properly considered by the IRB and it was open to the IRB to deter­mine that he was a member of a terrorist organization for purposes of s. 34(1)(f) of the IRPA. How­ever, an individual's status was relevant and there could be a distinction between a minor and an adult in the determi­nation of whether the individual was a mem­ber of a terrorist organization under s. 34(1)(f) in a case where the minor provided evidence to sup­port such a distinction. Sec­tion 7 of the Charter was not engaged in the determina­tion to be made by the IRB under s. 34(1)(f). The Convention on the Rights of the Child did not apply when the proceed­ings and decision involving an individual (such as in this case) took place when the individual was no longer a minor.

Aliens - Topic 3.2

Definitions and general principles - Inter­national Conventions and obligations - [See third Aliens - Topic 1747 ].

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a sub­vers­ive, espionage or terrorist organ­iz­ation - A member of the Immigra­tion Division of the Immigration and Refu­gee Board (IRB) determined that Poshteh was inad­missible pursuant to s. 34(1)(f) of the Immigration and Refugee Protection Act because he was a member of a terrorist organization - His involvement consisted of disseminating propaganda leaflets on behalf of the organ­ization respecting the overthrowing of the Iranian government for approximately two years when he was a teenager - Poshteh applied for judicial review, arguing, inter alia, that he was not a "member" of a terrorist or­ganization within the meaning of s. 34(1)(f) having regard to his age and limited activities - The Federal Court dismissed the applica­tion, holding that the IRB member made no reviewable error in arriving at the de­cision under review - Poshteh appealed - The Federal Court of Appeal dismissed the appeal - See para­graphs 1 to 65.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a sub­vers­ive, espionage or terrorist organ­ization - Section 34(1)(f) of the Immigra­tion and Refugee Protection Act provided that a permanent resident or foreign nation­al was inad­missible on secur­ity grounds for being a member of an organization involved in espionage, subver­sion, terror­ism, etc. - The Federal Court of Appeal stated that although there was no blanket exemption for minors in s. 34(1)(f), an individual's status as a minor was still relevant under s. 34(1)(f) - The court stated that in the context of age, relevant considerations under s. 34(1)(f) would be matters such as whether the minor had the requisite knowl­edge or men­tal capacity to understand the nature and effect of his actions - A finding of mem­bership in a terrorist organization for a minor under the age of 12 would be highly unusual - It would be open to the minor to raise what­ever factors he con­sidered rele­vant in a particular case - See paragraphs 39 to 54.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a sub­vers­ive, espionage or terrorist organ­ization - A member of the Immigra­tion Division of the Immigration and Refu­gee Board (IRB) deter­mined that Poshteh was inad­missible pursu­ant to s. 34(1)(f) of the Immigration and Refugee Protection Act because he was a member of a terrorist organization - His involvement consisted of disseminating propaganda leaflets on behalf of the organ­ization respecting the overthrowing of the Iranian government for approximately two years when he was a teenager - Poshteh applied for judicial review - The Federal Court dismissed the application - Poshteh appealed, arguing that in the case of a minor, the IRB had to take into account the best interests of the child in accordance with international human rights instruments to which Canada was a signatory (e.g., the Convention on the Rights of the Child) - The Federal Court of Appeal held that the Convention was not relevant in this case because Posh­teh was an adult when he invoked and be­came subject to Canada's immigration laws and procedures - See paragraphs 57 to 60.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a sub­vers­ive, espionage or terrorist organ­ization - A member of the Immigra­tion Division of the Immigration and Refu­gee Board (IRB) deter­mined that Poshteh was inad­missible pursu­ant to s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA) because he was a member of a terrorist organization - His involvement consisted of disseminating propaganda leaf­lets on behalf of the organization res­pect­ing the overthrowing of the Iranian gov­ernment for approximately two years when he was a teenager - Poshteh applied for judicial review - The Federal Court dis­missed the application - Poshteh appealed, alleging a breach of s. 7 of the Charter - The Federal Court of Appeal dismissed the appeal, holding that s. 7 is not engaged in the determination to be made by the IRB under s. 34(1)(f) of the IRPA - See para­graphs 61 to 64.

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board - Immigration Division - Standard of review - A member of the Im­mi­gration Division of the Immigration and Refugee Board (IRB) deter­mined that Posh­teh was inadmissible pursu­ant to s. 34(1)(f) of the Immigration and Refugee Protection Act because he was a member of a terrorist organization - His involve­ment consisted of disseminating propa­gan­da leaflets on behalf of the organization respecting the overthrowing of the Iranian government for approximately two years when he was a teenager - Poshteh applied for judicial review, arguing, inter alia, that he was not a "member" of a terrorist or­ga­ni­z­ation within the meaning of s. 34(1)(f) -The Federal Court dismissed the applica­tion - Poshteh appealed - The Fed­eral Court of Appeal held that the question of the IRB's interpretation of the term "mem­ber" in s. 34(1)(f) was reviewable on a standard of reasonableness - The question before the IRB of whether age was to be con­sidered under s. 34(1)(f) and if so, the manner of doing so was reviewable on a standard of correctness - The standard of re­view by the Court of Appeal of the Fed­er­al Court decision was correctness on a question of law and palpable and over­riding error on a question of fact or mixed law and fact - See paragraphs 16 to 25.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion - [See fourth Aliens - Topic 1747 ].

Words and Phrases

Member - The Federal Court of Appeal discussed the meaning of the word "mem­ber" as it was used in s. 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 - See paragraphs 26 to 38.

Cases Noticed:

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, addendum [1998] 1 S.C.R. 1222, refd to. [para. 16].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 25].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 25].

Dr. Q. v. College of Physicians and Sur­geons (B.C.) - see Dr. Q., Re.

Canada (Minister of Citizenship and Immi­gration) et al. v. Singh (Iqbal) (1998), 151 F.T.R. 101 (T.D.), refd to. [para. 27].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 38].

R. v. Hill, [1986] 1 S.C.R. 313; 68 N.R. 161; 17 O.A.C. 33, refd to. [para. 42].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 43].

Fitzgerald et al. v. Alberta, [2003] 3 W.W.R. 752; 331 A.R. 111 (Q.B.), affd. [2004] 6 W.W.R. 416; 348 A.R. 113; 321 W.A.C. 113 (C.A.), leave to appeal refused (2005), 336 N.R. 197 (S.C.C.), refd to. [para. 44].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 62].

Barrera v. Minister of Employment and Im­migration (1992), 151 N.R. 28; 99 D.L.R.(4th) 264 (F.C.A.), refd to. [para. 63].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 34(1)(f) [para. 1]; sect. 36(3)(e) [para. 41].

United Nations, Convention on the Rights of the Child (1989), 1577 U.N.T.S. 3; Can. T.S. 1992, No. 3, art. 3.1 [para. 58].

Counsel:

Avi J. Sirlin, for the appellant;

Stephen H. Gold, for the respondent;

Lee Ann Chapman and Martha MacKin­non, for the intervener.

Solicitors of Record:

Avi J. Sirlin, Toronto, Ontario, for the ap­pellant;

John H. Sims, Q.C., Deputy Attorney Gen­er­­al of Canada, Ottawa, Ontario, for the respondent;

Lee Ann Chapman and Martha MacKin­non, Justice for Children & Youth, Tor­onto, Ontario, for the inter­vener.

This appeal was heard at Toronto, Ontario, on January 20, 2005, before Rothstein, Noël and Malone, JJ.A., of the Federal Court of Appeal. Rothstein, J.A., delivered the follow­ing judgment for the court at Ottawa, Ontario, on March 4, 2005.