Al Yamani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1457

• Judge: Snider, J.
• Court: Federal Court (Canada)
• Case Date: October 31, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 1457;(2006), 304 F.T.R. 222 (FC)

Al Yamani v. Can. (M.C.I.) (2006), 304 F.T.R. 222 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. DE.019

Issam Al Yamani (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-7289-05; 2006 FC 1457)

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

Federal Court

Snider, J.

December 1, 2006.

Summary:

Al Yamani was a permanent resident of Canada. The Immigration and Refugee Board, Immigration Division, made a determination pursuant to s. 34(1)(f) of the Immigration and Refuge Protection Act (IRPA) that Al Yamani was inadmissible to Canada on security grounds for being a member of an organization (the Popular Front for the Liberation of Palestine (PFLP)) that there were reasonable grounds to believe engaged, had engaged or would engage in terrorism. Al Yamani applied for judicial review, arguing that the Board erred in concluding that there were reasonable grounds to believe that Al Yamani was a member of the PFLP from the time he joined the youth study ring to 1991/92, in determining that the PFLP had engaged in terrorist activities during the time that Al Yamani was a member, and in concluding that s. 34(1)(f) of the IRPA was not a violation of s. 2 or s. 15 of the Charter. Al Yamani also argued that the Board breached the duty of fairness in failing to provide reasons which addressed the issues before it.

The Federal Court dismissed the application.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - [See Civil Rights - Topic 1854.1 and Civil Rights - Topic 5662 ].

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - The Immigration and Refugee Board, Immigration Division, made a determination pursuant to s. 34(1)(f) of the Immigration and Refugee Protection Act that Al Yamani was inadmissible to Canada for being a member of an organization (the Popular Front for the Liberation of Palestine (PFLP)) that there were reasonable grounds to believe engaged, had engaged or would engage in terrorism - Al Yamani applied for judicial review, arguing that the Board erred in concluding that there were reasonable grounds to believe that he was a member of the PFLP from the time he joined the youth study ring to 1991/92 and in determining that the PFLP had engaged in terrorist activities during the time that he was a member - The Federal Court dismissed the application - The court stated that "there is no temporal component to the analysis in s. 34(1)(f). If there are reasonable grounds to believe that an organization engages today in acts of terrorism, engaged in acts of terrorism in the past or will engage in acts of terrorism in the future, the organization meets the test set out in s. 34(1)(f). There is no need for the Board to examine whether the organization has stopped its terrorist acts or whether there was a period of time when it did not carry out any terrorist acts. Membership by the individual in the organization is similarly without temporal restrictions. The question is whether the person is or has been a member of that organization. There need not be a matching of the person's active membership to when the organization carried out its terrorist acts" - See paragraphs 11 to 12.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - The Immigration and Refugee Board, Immigration Division, made a determination pursuant to s. 34(1)(f) of the Immigration and Refugee Protection Act that Al Yamani was inadmissible to Canada for being a member of an organization (the Popular Front for the Liberation of Palestine (PFLP)) that there were reasonable grounds to believe engaged, had engaged or would engage in terrorism - Al Yamani applied for judicial review, arguing that the Board erred in concluding that there were reasonable grounds to believe that he was a member of the PFLP from the time he joined the youth study ring to 1991/92 - Al Yamani asserted that the Board erred by failing to exclude periods of time when he stated that he was not a member of the PFLP - The Federal Court rejected the argument - Whether Al Yamani was a member for the entire period of time was not determinative - His acknowledged membership even for the abbreviated times was sufficient to establish membership for the purposes of s. 34(1)(f) - Further, Al Yamani's evidence was that he was not actively involved with the PFLP during certain time periods because the countries that he was in did not have active PFLP cells - As soon as he reached a location where he could do so, he resumed his activities within the PFLP - On that evidence, it was not unreasonable for the Board to conclude that, while Al Yamani's direct activities may have ceased for certain periods of time, his membership did not - See paragraphs 16 to 21.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - The Immigration and Refugee Board, Immigration Division, made a determination pursuant to s. 34(1)(f) of the Immigration and Refuge Protection Act that Al Yamani was inadmissible to Canada for being a member of an organization (the Popular Front for the Liberation of Palestine (PFLP)) that there were reasonable grounds to believe engaged, had engaged or would engage in terrorism - Al Yamani applied for judicial review, arguing that the Board erred in concluding that there were reasonable grounds to believe that the PFLP engaged or had engaged in acts of terrorism - Al Yamani submitted that the Board erred by considering acts of terrorism that occurred before or after the time of his membership or during the times of his inactivity - The Federal Court rejected the argument - The court stated that "this temporal aspect is not relevant to a s. 34(1)(f) determination. For purposes of s. 34(1)(f), the question of whether the PFLP engages, has engaged or will engage in acts of terrorism is independent of Mr. Al Yamani's membership in the organization ... The fact that there are time lags between terrorist acts does not render the group 'non-terrorist' during the intervening periods" - See paragraphs 24 to 25.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - The Immigration and Refugee Board, Immigration Division, made a determination pursuant to s. 34(1)(f) of the Immigration and Refuge Protection Act that Al Yamani was inadmissible to Canada for being a member of an organization (the Popular Front for the Liberation of Palestine (PFLP)) that there were reasonable grounds to believe engaged, had engaged or would engage in terrorism - Al Yamani applied for judicial review, arguing that the Board's conclusion that the PFLP was a terrorist organization was not made with regard to the evidence - The Federal Court rejected the argument - The Board's decision that there were reasonable grounds to believe that the PFLP had engaged in terrorism was based on the application of the definition of terrorism as set out in Suresh v. Canada (M.C.I.) (S.C.C.) and an adequate assessment of the evidence before it - The Board's conclusion on the nature of the PFLP was reasonable - See paragraphs 30 to 37.

Civil Rights - Topic 1854.1

Freedom of speech or expression - Limitations on - Membership in terrorist organizations - The Immigration and Refugee Board, Immigration Division, made a determination pursuant to s. 34(1)(f) of the Immigration and Refuge Protection Act (IRPA) that Al Yamani was inadmissible to Canada for being a member of an organization (the Popular Front for the Liberation of Palestine (PFLP)) that there were reasonable grounds to believe engaged, had engaged or would engage in terrorism - Al Yamani applied for judicial review, arguing that the Board erred in failing to find that s. 34(1)(f) violated his s. 2 Charter rights to "freedom of thought, belief, opinion and expression" - Al Yamani argued that his activities within the PFLP were necessary for him to express his political views and to support Palestinian self-determination - He described the Palestinian Liberation Organization (PLO) as a legitimate organization, recognized by the Canadian Government as a representative of the Palestinian people - He submitted that the PFLP was a sub-organization of the PLO and that one could only participate in the PLO by being a member of a group such as the PFLP - The Federal Court held that s. 34(1)(f) of the IRPA did not breach Al Yamani's s. 2 Charter rights - While Al Yamani attempted to re-characterize his membership as being in the PLO, the application of s. 34(1)(f) was made with respect to his membership in the PFLP, which had been found to be a terrorist organization - The Board's decision was consistent with the findings in Suresh v. Canada (M.C.I.) (S.C.C.) and was supported by the evidence - See paragraphs 41 to 46.

Civil Rights - Topic 2062

Freedom of thought, belief or opinion - Denial of - What constitutes - [See Civil Rights - Topic 1854.1 ].

Civil Rights - Topic 5662

Equality and protection of the law - Particular cases - Immigration - The Immigration and Refugee Board, Immigration Division, made a determination pursuant to s. 34(1)(f) of the Immigration and Refuge Protection Act (IRPA) that Al Yamani was inadmissible to Canada for being a member of an organization (the Popular Front for the Liberation of Palestine (PFLP)) that there were reasonable grounds to believe engaged, had engaged or would engage in terrorism - Al Yamani applied for judicial review, arguing that s. 34(1)(f) of the IRPA resulted in discrimination as contemplated by s. 15(1) of the Charter as it proscribed associations and activities that were lawful for Canadian citizens but not lawful for non-citizens - The Federal Court rejected the argument - Al Yamani failed to meet the threshold requirement of s. 15 that membership in a terrorist organization was a right that was protected by s. 15 - See paragraphs 47 to 57.

Cases Noticed:

Kanendra v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 546; 2005 FC 923, refd to. [para. 7].

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 2005 FCA 85, refd to. [para. 7].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 8].

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; 2003 SCC 20, refd to. [para. 9].

Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1174, refd to. [para. 27].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, consd. [para. 28].

Fuentes v. Canada (Minister of Citizenship and Immigration) (2003), 231 F.T.R. 172; 2003 FCT 379, refd to. [para. 30].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 49].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 49].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 50].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 53].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 53].

Lavoie et al. v. Canada et al., [2002] 1 S.C.R. 769; 284 N.R. 1; 2002 SCC 23, refd to. [para. 54].

Via Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184; 193 D.L.R.(4th) 357 (F.C.A.), refd to. [para. 58].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2, sect. 15 [para. 40].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 34(1)(f) [para. 4].

Authors and Works Noticed:

Reisman, W. Michael, International Legal Responses to Terrorism (1999), 22 Hous. J. Int'l L. 3, p. 41 [para. 25].

Counsel:

Barbara Jackman, for the applicant;

Donald A. MacIntosh and Jamie Todd, for the respondent.

Solicitors of Record:

Barbara Jackman, Toronto, Ontario, for the applicant;

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

This application was heard on October 31, 2006, at Toronto, Ontario, before Snider, J., of the Federal Court, who delivered the following decision on December 1, 2006.