Date: 20040303
Docket: IMM-1357-03
Citation: 2004 FC 310
BETWEEN:
PIRAN AHMADI POSHTEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of a Member of the Immigration Division of the Immigration and Refugee Board (the "Member") made following an admissibility hearing conducted pursuant to subsection 44(2) of the Immigration and Refugee Protection Act[1] (the "Act"). The Member concluded her reasons in the following terms:
I have concluded that there are reasonable grounds to believe that Mr. Ahmadi Poshteh was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism. Therefore, he has not satisfied me that he is not inadmissible to Canada under paragraph 34(1)(f) [of the Act].
[2] In the result, a removal order issued against the Applicant pursuant to paragraph 45(d) of the Act.
[3] The decision under review is dated the 13th of February, 2003.
BACKGROUND
[4] The background to the decision under review is succinctly set out in the reasons for decision. At page 2 and 3 of the reasons, the Member wrote:
At the admissibility hearing on 13 January 2003, Mr. Ahmadi Poshteh and his counsel conceded that his name, date of birth and country of birth are correct as they appear in the report; i.e., that his full and correct name is Piran Ahmadi Poshteh born 26 July 1984 in France. Also, he conceded that he is not a Canadian citizen nor a permanent resident of Canada, that he seeks to enter Canada in order to remain on a permanent basis, that he is not in possession of the required visa, and that he does not hold any passport or travel document whatsoever.
Mr. Ahmadi Poshteh and his counsel further conceded that the Mujahedin-e-Khalq (MEK) is an organization in respect of which there are reasonable grounds to believe engages, has engaged or will engage in terrorism.
The Member continued at page 4 of her reasons in the following terms:
Mr. Ahmadi Poshteh testified that he was not a member of the MEK although his father was. His father died in 1999 when he [the Applicant] was 15 years old, and he blames the Iranian government of his father's death. He wanted to join the MEK in order to continue to help achieve his father's goal, which he understood to be the overthrow of the current Iranian government. He testified that his love for his father was his impetus to seek membership in the MEK.
Mr. Ahmadi Poshteh testified that his father's friend (whom he also believed to be a member of the MEK) would not allow him to joint the MEK, but eventually allowed him to participate through the dissemination of propaganda. From approximately February 2000 to approximately June 2002 at a frequency of one or two times per month, he and a colleague would distribute MEK propaganda leaflets in Tehran. He ceased this activity in June 2002 because he was arrested and detained for two weeks by the police. He was too frightened after this ordeal to continue his involvement.
Mr. Ahmadi-Poshteh testified to no other involvement in MEK activities. He testified that he did not attend meetings, or recruit members or engage in any activity whatsoever other than the distribution of propaganda. He testified that he was unaware that the MEK was considered to be a terrorist organization or that it employed violence to achieve its ends.
[5] Mr. Ahmadi Poshteh testified that he is a citizen of Iran.
RELEVANT STATUTORY AND REGULATORY PROVISIONS
[6] A significant number of statutory and regulatory provisions are central to this matter. For ease of reference, those provisions are set out in a schedule of these reasons.
THE DECISION UNDER REVIEW
[7] In her reasons, the Member summarized the evidence before her with respect to the MEK. She concluded that it exists and is an organization, and that there are reasonable grounds to believe it engages, has engaged or will engage in terrorism. She considered the meaning of the word "member" by reference to the Oxford English Dictionary and by reference to relevant jurisprudence. She wrote:
It [the word "member"] is a term similar to the word "terrorism", in that it will acquire its definition bit by bit through a growing body of case law. Jurisprudence in Canada has provided some guidance in assessing what constitutes membership. In Baroud (Re) the person concerned was determined to be a member of a terrorist organization for having provided his expertise in counterfeiting and forged travel documents for the benefit of Fatah and Force 17. In Suresh the person concerned raised funds for the LTTE (Liberation Tigers of Tamil Eelam). In Singh the person concerned was involved in fundraising, recruiting and organizing for the benefit of the BK (Babbar Khalsa) and the BKI (Babbar Khalsa International). [citations omitted]
[8] The Member then went on to review at some length the Applicant's testimony regarding his motivation for seeking to ally himself with the MEK and his activities and knowledge of the MEK. She concluded:
Based upon the foregoing and in light of any evidence to the contrary, it appears that Mr. Ahmadi Poshteh's involvement with the MEK consisted solely of disseminating propaganda for a period of approximately two years. Aside from the fact that he referred to himself as a member at one point ..., I find that his involvement with the MEK goes beyond that of a mere sympathizer or supporter. He shared in the MEK's overriding goal to overthrow the current Iranian government. Although there was no formal enlistment in the MEK, it was not for lack of trying. Mr. Ahmadi Poshteh desperately wished to enlist in some formal fashion. He claims he was denied that permission. Nevertheless, he was allowed for a period of two years to engage in an activity for the benefit of the MEK. Propaganda is an important part of the MEK. The purpose of propaganda is partly to educate, but also to enlist sympathy and support for one's cause. Support could conceivably range from funding to enlistment of new members, to creating a climate where one's activities (violent or otherwise) can proceed. Mr. Ahmadi Poshteh disseminated MEK propaganda approximately 24 to 48 times over a period of approximately two years. I find this to be a significant level of activity. I do not find it to be marginal or minimal. I am satisfied that he performed a function that is equal to that of a member of the MEK. By virtue of his activities on behalf of the MEK, he fulfilled the role of "member" in the context of 34(1)(f) of the Act.
Mr. Ahmadi Poshteh claims that he disassociated himself from any involvement with the MEK after his experience in detention. I do not find it implausible that a 17-year-old would find the reality of arrest and detention in Iran sufficiently frightening to cause him to end his association with the MEK. Nor do I conclude that there are reasonable grounds to believe that he may re-associate himself with the MEK in Canada. I find no basis for Mr. Brian Page's observation that "(I)t is likely that he will make contact with members of this group while in Canada, and that he will actively work for their cause" [reference to an exhibit omitted] beyond mere suspicion. I attach no weight to Mr. Page's speculations. However, I am satisfied that there is sufficient evidence to conclude that there are reasonable grounds to believe that Mr. Ahmadi Poshteh was a member of an organization in respect of which there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism. [emphasis in the original]
[9] The Member then goes on to review the Applicant's testimony regarding his knowledge of MEK activities. She concludes in this regard:
Mr. Ahmadi Poshteh denies any knowledge of terrorist acts committed by the MEK. He also denies that, prior to his arrival in Canada, he had any knowledge that the MEK is considered to be a terrorist organization. He admitted some historical knowledge of the organization including its bases in France and Iraq. He understood generally its goal to overthrow and replace the current Iranian government. However, he claims to be ignorant of any violent activities carried out by the MEK.
I do not find Mr. Ahmadi Poshteh['s] claim that he was ignorant of violent activities carried out by the MEK to be credible. He was directly involved in propaganda activities for two years. He received his materials from the MEK via e-mail and the Internet. He would have been in receipt of material from the MEK on anywhere from 24 to 48 different occasions. While I do not doubt that much of that material was critical of the Iranian regime, I also believe that on occasion that material contained information regarding MEK activities. The Mujahedin-e-Khalq (MEK or MKO) [reference to an Exhibit omitted] list several violent actions carried out by the MEK many for which the MEK claimed responsibility. For the period of February 2000 to June 2001 ..., the MEK claimed responsibility for a mortar attack on the Presidential Palace in Tehran resulting in one death, a mortar attack on or near the Revolutionary Guard Corps ... compound in Tehran, a mortar attack on a state security building in Tehran, the attempted assassination of a Brigadier General in Tehran, a guerilla attack on the Organization of Islamic Culture and Communications in Tehran, and a rocket attack on a state-owned building in Tehran. Patterns of Global Terrorism... also states that the MEK "regularly claimed responsibility for armed incursions into Iran that targeted police and military outposts, as well as for mortar and bomb attacks on security organization headquarters in various Iranian cities."
I believe that an organization such as the MEK that believes that violence as a means to an end is justified and that openly claims responsibility for violent acts also keeps its members and supporters apprised of its actions through its propaganda. It makes no sense that an organization that feels justified in using violence and openly claims responsibility for violent acts would not proudly proclaim those acts to its members and supporters. By the same token, I also believe that Mr. Ahmadi Poshteh understood that the overthrow of the current Iranian government would occur through violent means if necessary. It is his understanding that the present government of Iran will be removed by means of a revolution. If Mr. Ahmadi Poshteh knows anything about his own country's recent history, he knows that revolution is not without violence. Mr. Ahmadi Poshteh was eager to do anything for the MEK to avenge his father's death. I believe it mattered little to him that the MEK had engaged in acts of terror or violence. [some citations omitted]
[10] The Member noted the Applicant's urgings that "member", in the context of paragraph 34(1)(f) of the Act ought to be read restrictively and so as to exclude minors such as he was throughout the time of his activity on behalf of the MEK. In response, she wrote:
There is no distinction made in the Immigration and Refugee Protection Act and Regulations respecting the admissibility of minors as opposed to that of adults. Distinctions are made, however, respecting the detention of minors as opposed to the detention of adults. I conclude from this that had the legislators wished to distinguish the admissibility of minors on security grounds, they could have easily done so. In addition, I do not find Mr. Ahmadi Poshteh's argument persuasive that he is less liable for his actions given that at the time that he was actively involved with the MEK he was a minor. He became involved of his own volition. Although he may have been initially motivated by passion, he decided to continue his involvement for the next two years. He chose to become involved and he chose to leave. He was of an age where he made decisions even against the advice of the adults in his life. He is accountable for his actions and to the consequences of those actions. I am not persuaded that a more restrictive definition of membership ought to be applied in this case. I conclude that there are reasonable grounds to believe that Mr. Ahmadi Poshteh was a member of the MEK. [emphasis added]
[11] Finally, the Member acknowledges that her finding in respect of the Applicant precludes him from pursuing a Convention refugee claim in Canada by reason of paragraph 101(1)(f) of the Act. She acknowledges that, given his status as a minor at all times during his activity in relation to the MEK in Iran, to fail to grant him differential treatment might be seen to amount to a denial of fundamental justice. The Member notes sections 1 and 7 of the Canadian Charter of Rights and Freedoms[2] (the "Charter") and provisions of the Act that provide for an application to the appropriate Minister for protection in circumstances such as those in which the Applicant now finds himself. She concludes:
The Federal Court - Trial Division in McAllister noted that foreign members of terrorist organizations are inadmissible to Canada and that such a provision does not offend the Charter. The Supreme Court of Canada set out in Suresh that the Minister is obliged to exercise discretion in accordance with the principles of fundamental justice in cases where a person may face torture if he is removed from Canada. Perhaps the person's age may be a factor under consideration as well. In any event, the Minister is bound by Section 7 of the Charter and is bound to observe the principles of fundamental justice in considering whether allowing Mr. Ahmadi Poshteh's application for protection and thus staying the removal order serve the public interest. Based upon the foregoing, I am satisfied that Mr. Ahmadi Poshteh's rights under Section 7 of the Charter are not engaged by making a finding that he is inadmissible to Canada on security grounds. [citations omitted]
THE ISSUES
[12] I am satisfied that the issues on this application for judicial review are the following: first, whether the Member erred in a reviewable manner in her interpretation of the word "member" as it is used in paragraph 34(1)(f) of the Act; secondly, whether the Member erred in a reviewable manner in determining the Applicant to be a "member" within the meaning of paragraph 34(1)(f) of the Act; and thirdly, whether the Member erred in a reviewable manner in determining, and these are my words, not the Member's, that consideration of Charter issues was premature, given her mandate and its interrelationship with other steps in the administrative process that might lead to the removal of the Applicant to Iran. Each issue raises the associated question of standard of review.
ANALYSIS
1) The Interpretation of "member"
[13] Before the Court, counsel urged that the Member erred in a reviewable manner in interpreting the word "member" without regard to her obligation under subsection 3(3) of the Act to construe and apply the Act in a manner that would ensure that her decision is consistent with the Charter and that complies with international human rights instruments to which Canada is a signatory, here, in particular, the United Nations Convention on the Rights of the Child[3]. He further urged that the standard of review on the issue, against a "pragmatic and functional analysis"[4] is "correctness".
[14] I am satisfied that, on a fair reading of the Member's reasons for decision, this question and the related question of appropriate standard of review simply do not arise. The Member was not called upon to determine whether the word "member" in paragraph 34(1)(f) of the Act should be interpreted restrictively so as to exclude all minors from ever being found to be members of terrorist organizations, or more liberally, and she quite properly did not make a finding in this regard. Rather, she dealt only with the issue of whether or not the Applicant, who was a minor at all relevant times, was a "member" of a terrorist organization during the time when he engaged in Iran in activity on behalf of the MEK. The Member made no reviewable error in failing to undertake an interpretive analysis of the meaning of the word "member" as used in paragraph 34(1)(f) beyond the limits of the specific facts before her, whatever might be the appropriate standard of review in the context of such an abstract interpretation.
2) Reviewable error in determining the Applicant to fall within the ambit of paragraph 34(1)(f) of the Act
a) Standard of Review with regard to the determination of "membership" on the facts before the Member
[15] On this issue, I adopt the analysis of my colleague Justice Lemieux in Ahamad v. Canada (Minister of Citizenship and Immigration)[5] where, at paragraphs [23] to [30], Justice Lemieux concluded, after referring to Pushpanathan, supra, and Baker v. Canada (Minister of Citizenship and Immigration)[6] and the "pragmatic and functional analysis" referred to in those decisions, concluded that the standard of review of the decision that was before him was reasonableness simpliciter, notwithstanding that the determination flowing from the decision that was under review was of "quite profound" significance for the Applicant before him[7]. Justice Lemieux went on to adopt the words of Justice Iacobucci in Canada (Director of Investigation and Research) v. Southam Inc.[8] where, at paragraph [56], he wrote in respect of the reasonableness or unreasonableness standard of review:
... An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion of the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.
[16] As a general comment, I must say that I found the reasons of the Member for the decision that is here under review to be comprehensive, fair and well reasoned.
b) Reviewable error
[17] It was not alleged before me that the Member, in arriving at the decision she did, misapprehended the facts before her, ignored any argument made on behalf of the Applicant or was other than "alert and alive" to the fact that the Applicant was at all relevant times a minor. The Member's interpretation of the word "member" in paragraph 34(1)(f), on the facts before her, was not unreasonable and, I am satisfied, could not be said to have ignored international human rights instruments to which Canada is a signatory but rather to have balanced compliance with those instruments with other objectives of the Act as set out in subsections 3(1) and (2) and with other factors enumerated in subsection 3(3). Further, when read in the context of the evidence that was before the Member, the interpretation given by the Member to the concept of "membership" was, I am satisfied, consistent with earlier decisions of this Court.
[18] In Canada (Minister of Citizenship and Immigration) v. Owens[9], Justice Dawson, under the heading "Did the Appeal Division apply an incorrect test to determine membership?" wrote at paragraphs [17] and [18] of her reasons:
At the outset of the Appeal Division's analysis of the evidence concerning membership, the Appeal Division stated as follows:
"It would be inappropriate to construe the word 'member' in section 19(1)(f)(iii)(B) of the Act narrowly. That is, given that the section is directed at activities which undoubtedly have a clandestine nature, 'member' should not be understood to involve attributes of 'membership' in recognized or legally constituted organizations, such as the paying of fees or being registered on a membership list. At the same time, the word should have a content that goes beyond that of being a mere supporter or sympathizer." (footnote omitted)
On a fair reading of its reasons, I cannot conclude that the Appeal Division applied an incorrect test. The Appeal Division correctly directed itself that the word "member" must not be construed narrowly. ...
[19] While the foregoing quotation makes it evident on its face that Justice Dawson was dealing with provisions of the former Immigration Act[10], I remain satisfied that her comments and those of the Appeal Division that she quoted are equally applicable on the facts of this matter, albeit that Justice Dawson would appear to be applying a standard of "correctness" which might well be appropriate given the generalized nature of the words of the Appeal Division that were before her. While there is nothing on the face of Justice Dawson's reasons that would indicate that the individual who was there found to be a "member" was at any relevant time a minor, in light of the fact that I am satisfied that the Member whose reasons and decision are here under review was "alert and alive" to the Applicant's age at the time of his activities, I am satisfied that is not a distinguishing factor.
3) "Prematurity"
[20] Finally, I am satisfied that, once again against a standard of review of reasonableness, the Member's conclusion that it was, and this is my word, not hers, "premature" to entertain an argument of a Charter breach in light of avenues remaining open to the Applicant to have his situation reviewed given the treatment he might face if required to return to Iran, was open to her. In Nguyen v. Canada (Minister of Employment and Immigration)[11], Justice Marceau, for the Court, wrote at paragraph [17]:
We have been dealing here: first, with the issuance of a deportation order, not its actual execution to a precise country, and second, with a refusal to inquire into a claim of fear of persecution, not a refusal to take into consideration proof, on a balance of probabilities, that the deportee, if sent back to a particular country, will be subject to persecution including torture and possibly execution. I may have had no difficulty in finding that the rules of fundamental justice did not require, in the case of a criminal who is certified to be a public danger, thorough investigation of a claim of fear of persecution prior to the issuance of a deportation order against the person. It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me, a participation in a cruel and unusual treatment within the meaning of section 12 of the Charter, or, at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under section 7 of the Charter. There are means to enjoin the Minister not to commit an act in violation of the Charter.
[21] To the same effect, see Barrera v. Canada (Minister of Employment and Immigration)[12].
CONCLUSION
[22] On the basis of the foregoing brief analysis, I find no reviewable error on the part of the Member in arriving at the decision that is here under review. In the result, this application for judicial review will be dismissed.
CERTIFICATION OF A QUESTION
[23] At the close of hearing of this application for judicial review, I reserved my decision and advised counsel that, following circulation of reasons setting forth my decision, an opportunity would be provided to them to make submissions on certification of a question. Counsel for the Applicant will have seven (7) days from the date of these reasons to serve and file any submissions considered appropriate on certification of a question. Thereafter, counsel for the Respondent will have seven (7) days to serve and file any responding submissions. Finally, counsel for the Applicant will have a further three (3) days to serve and file any reply submissions. Only thereafter will an order issue on this application for judicial review.
__________________________
J. F.C.
Ottawa, Ontario
March 3, 2004
SCHEDULE
From The Immigration and Refugee Protection Act
2. (1) The definitions in this subsection apply in this Act.
...
"foreign national" means a person who is not a Canadian citizen or a permanent resident, and includes a stateless person.
Provenant de La Loi sur l'immigration et la protection des réfugiés
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
...
« _étranger_ » Personne autre qu'un citoyen canadien ou un résident permanent; la présente définition vise également les apatrides.
3.(3) This Act is to be construed and applied in a manner that
...
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
...
(f) complies with international human rights instruments to which Canada is signatory.
3.(3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet_:
...
d) d'assurer que les décisions prises en vertu de la présente loi sont conformes à la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d'une part, d'égalité et de protection contre la discrimination et, d'autre part, d'égalité du français et de l'anglais à titre de langues officielles du Canada;
...
f) de se conformer aux instruments internationaux portant sur les droits de l'homme dont le Canada est signataire.
20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and
...
20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver_:
a) pour devenir un résident permanent, qu'il détient les visa ou autres documents réglementaires et vient s'y établir en permanence;
...
33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants_:
a) être l'auteur d'actes d'espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s'entend au Canada;
b) être l'instigateur ou l'auteur d'actes visant au renversement d'un gouvernement par la force;
c) se livrer au terrorisme;
...
(f) being 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).
34.(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
...
f) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c).
34.(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national.
44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.
44. (1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre.
(2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi.
(3) L'agent ou la Section de l'immigration peut imposer les conditions qu'il estime nécessaires, notamment la remise d'une garantie d'exécution, au résident permanent ou à l'étranger qui fait l'objet d'un rapport ou d'une enquête ou, étant au Canada, d'une mesure de renvoi.
45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
(a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident;
(b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act;
(c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or
45. Après avoir procédé à une enquête, la Section de l'immigration rend telle des décisions suivantes_:
a) reconnaître le droit d'entrer au Canada au citoyen canadien au sens de la Loi sur la citoyenneté, à la personne inscrite comme Indien au sens de la Loi sur les Indiens et au résident permanent;
b) octroyer à l'étranger le statut de résident permanent ou temporaire sur preuve qu'il se conforme à la présente loi;
c) autoriser le résident permanent ou l'étranger à entrer, avec ou sans conditions, au Canada pour contrôle complémentaire;
(d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
...
101. (1) A claim is ineligible to be referred to the Refugee Protection Division if
...
(f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).
d) prendre la mesure de renvoi applicable contre l'étranger non autorisé à entrer au Canada et dont il n'est pas prouvé qu'il n'est pas interdit de territoire, ou contre l'étranger autorisé à y entrer ou le résident permanent sur preuve qu'il est interdit de territoire.
...
101. (1) La demande est irrecevable dans les cas suivants_:
...
f) prononcé d'interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux - exception faite des personnes interdites de territoire au seul titre de l'alinéa 35(1)c) -, grande criminalité ou criminalité organisée.
From The Immigration and Refugee Protection Regulations
6. A foreign national may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa.
Provenant du Règlement sur l'immigration et la protection des réfugiés
6. L'étranger ne peut entrer au Canada pour s'y établir en permanence que s'il a préalablement obtenu un visa de résident permanent.
...
50. (1) In addition to the permanent resident visa required of a foreign national seeking to become a permanent resident at a port of entry, a foreign national seeking to become a permanent resident must hold
(a) a passport, other than a diplomatic, official or similar passport, that was issued by the country of which the foreign national is a citizen or national;
(b) a travel document that was issued by the country of which the foreign national is a citizen or national;
(c) an identity or travel document that was issued by a country to non-national residents, refugees or stateless persons who are unable to obtain a passport or other travel document from their country of citizenship or nationality or who have no country of citizenship or nationality;
(d) a travel document that was issued by the International Committee of the Red Cross in Geneva, Switzerland, to enable and facilitate emigration;
(e) a passport or travel document that was issued by the Palestinian Authority;
(f) an exit visa that was issued by the Government of the Union of Soviet Socialist Republics to its citizens who were compelled to relinquish their Soviet nationality in order to emigrate from that country;
(g) a British National (Overseas) passport that was issued by the Government of the United Kingdom to persons born, naturalized or registered in Hong Kong; or
(h) a passport that was issued by the Government of Hong Kong Special Administrative Region of the People's Republic of China.
(2) Subsection (1) does not apply to a person who is a protected person within the meaning of subsection 95(2) of the Act and holds a permanent resident visa when it is not possible for the person to obtain a passport or an identity or travel document referred to in subsection (1).
...
50. (1) En plus du visa de résident permanent que doit détenir l'étranger qui cherche à devenir résident permanent à un point d'entrée, l'étranger qui entend devenir résident permanent doit détenir l'un des documents suivants :
a) un passeport - autre qu'un passeport diplomatique, officiel ou de même nature - qui lui a été délivré par le pays dont il est citoyen ou ressortissant;
b) un titre de voyage délivré par le pays dont il est citoyen ou ressortissant;
c) un titre de voyage ou une pièce d'identité délivré par un pays aux résidents non-ressortissants, aux réfugiés au sens de la Convention ou aux apatrides qui sont dans l'impossibilité d'obtenir un passeport ou autre titre de voyage auprès de leur pays de citoyenneté ou de nationalité, ou qui n'ont pas de pays de citoyenneté ou de nationalité;
d) un titre de voyage délivré par le Comité international de la Croix-Rouge à Genève (Suisse) pour permettre et faciliter l'émigration;
e) un passeport ou un titre de voyage délivré par l'Autorité palestinienne;
f) un visa de sortie délivré par le gouvernement de l'Union des républiques socialistes soviétiques à ses citoyens obligés de renoncer à leur nationalité afin d'émigrer de ce pays;
g) un passeport intitulé « _British National (Overseas) Passport_ » , délivré par le gouvernement du Royaume-Uni aux personnes nées, naturalisées ou enregistrées à Hong Kong;
h) un passeport délivré par les autorités de la zone administrative spéciale de Hong Kong de la République populaire de Chine.
(2) Le paragraphe (1) ne s'applique pas à la personne protégée au sens du paragraphe 95(2) de la Loi qui est titulaire d'un visa de résident permanent dans les cas où il lui est impossible d'obtenir un passeport, une pièce d'identité ou un titre de voyage visé au paragraphe (1).
(3) The following documents are not considered passports or identity or travel documents for the purposes of this section:
(a) any passport or identity or travel document purporting to have been issued by Bophuthatswana, Ciskei, Transkei or Venda;
(b) any passport or identity or travel document purporting to have been issued by the All Palestine Government;
(c) any passport that was issued by the Government of the United Kingdom and is entitled "British Visitor's Passport"; and
(d) any passport purporting to have been issued by Somalia.
(3) Les documents ci-après ne sont pas considérés comme des passeports, pièces d'identité ou titres de voyage pour l'application du présent article :
a) tout passeport, toute pièce d'identité ou tout titre de voyage censé avoir été délivré par le Bophuthatswana, le Ciskei, le Transkei ou le Venda;
b) tout passeport, toute pièce d'identité ou tout titre de voyage censé avoir été délivré par le « _All Palestine Government_ » ;
c) tout « _British Visitor's Passport_ » délivré par le gouvernement du Royaume-Uni;
d) tout passeport censé avoir été délivré par la Somalie
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1357-03
STYLE OF CAUSE: PIRAN AHMADI POSHTEH v. MCI
DATE OF HEARING: February 18, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: Gibson J.
DATED March 3, 2004
APPEARANCES BY:
Mr. Avi Sirlin For the Applicant
Mr. Stephen Gold For the Respondent
SOLICITORS OF RECORD:
Avi Sirlin
Toronto, Ontario
M5G 1T6
For the Applicant
Department of Justice
Toronto, Ontario
M5X 1K6
For the Respondent
[1] S.C. 2001, c. 27.
[2] Part I of the Constitution Act, 1982 (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act, 1982 (U.K.), 1982 c. 11.
[3] Can. T. S. 1992 No. 3.
[4] See: Pushpanathan v. Canada [1998] 1 S.C.R. 982.
[5] [2000] 3 F.C. 109 (F.C.T.D.).
[6] [1999] 2 S.C.R. 817.
[7] Two more recent decisions, on very different facts, reach the same conclusion on"standard of review" on application of facts to a legal standard by reference to Dr.Q. v. College of Physicians and Surgeons of British Columbia [2003] S.C.J. No. 18 (QL) (SCJ). Those cases are Nunavut Tunngavik Incorporated v. Attorney General of Canada, [2004] F.C.J. No. 138 (QL) (F.C.), at paragraph 17, and Attorney General of Canada v. Gregory Peace [2004] F.C.J. No. 218 (QL) (F.C.A.) ... at paragraph 18 and following. None of these cases was cited before me.
[8] [1997] 1 S.C.R. 748.
[9] (2000), 191 F.T.R. 119.
[10] R.S.C. 1985, c. I-2.
[11] (1993), 18 Imm. L.R. (2d) 165 (F.C.A.).
[12] (1992), 99 D.L.R. (4th) 264 (F.C.A.)