Digests

Hussenu v. Canada (Minister of Citizenship and Immigration)

IMM-4926-03

2004 FC 283, Russell J.

26/2/04

17 pp.

Judicial review of Board's decision applicant inadmissible to Canada pursuant to Immigration and Refugee Protection Act (IRPA), s. 34(1)(f) (member of organization reasonable grounds to believe engages in terrorism)--Applicant Eritrean citizen and farmer by profession--Feared persecution because of connections to Eritrean Liberation Front (ELF)--At inquiry evidence ELF hijacked Ethiopian airliners, but applicant testified unaware of any such hijacking--Applicant arguing duty on Minister prosecuting hearing under IRPA, s. 34 to advise claimant of exemption existing under IRPA, s. 34(2) for those persons otherwise deemed inadmissible under IRPA, s. 34(1)(f) but who can satisfy Minister their presence in Canada would not be detrimental to national interest-- Applicant correct in asserting high standard of natural justice applies in cases where Minister takes adversarial position in relation to refugee claimant, but this not imposing obligation on Minister, in case such as this, to notify and advise applicant concerning specific exemption that might be available to him under IRPA--Relevant provision in IRPA for all to see-- Applicant represented by legal counsel at all material times and had right to raise all material issues--Nguyen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 232 (C.A.) distinguished--Provided applicant had full access to his rights under IRPA, and not prevented from raising s. 34(2) exemption, no breach of procedural fairness--If counsel failed to raise issue, such omission cannot be laid at feet of Minister by invoking duty to provide notice of exemption apparent on face of statute--Onus upon applicant to raise, provide evidence on, all material issues--Likewise no duty or obligation on Board to notify or advise applicant concerning availability of exemption under s. 34(2)--Applicant also arguing Board found he ought to have known of hijackings because reason, in part, curfew imposed by Ethiopian army in 1969 and 1970--Applicant saying documentary evidence referred only to guerrilla activity as being reason for partial curfew, thus, constituting reviewable error--Finding open to Board to make--Board emphasized hijackings but also referred to activities of ELF generally as well as definition of terrorism in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 before decided ELF engaged in terrorist acts of which applicant aware--Nor did Board find all hijackings terroristic--Finally, applicant arguing not inadmissible under IRPA, s. 34(1)(f) because had ceased to be member of ELF--If this argument correct, then s. 34 would not apply to terrorist resigning membership in terrorist organization immediately prior to making refugee claim--Parliament could not have intended to exclude such applicant from purview of s. 34(1)(f)--S. 33 makes this position clear--No reviewable error in this regard-- Application dismissed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 33, 34(1)(f).