Digests

Bitaraf v. Canada (Minister of Citizenship and Immigration)

IMM-1609-03

2004 FC 898, Phelan J.

23/6/04

12 pp.

Judicial review of Immigration and Refugee Board's decision applicant, Iranian citizen, excluded person under United Nations Convention Relating to the Status of Refugees, Article 1F(c) (guilty of acts contrary to the purposes and principles of the United Nations) as result of involvement in mujahedin movement (MEK)--Board concluded applicant aware of terrorist activities, and took no action to withdraw services, thus accomplice--For claim under Article 1F(c), Board ought to have identified which purposes, principles of UN at issue-- Nevertheless, in light of S.C.C.'s pronounce-ment in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 on what qualifies as being contrary to purposes, principles, of UN, open to Board to find MEK terrorist organization--However, Board ought to have had regard for such matters as UN Security Council Resolution 1377 both as regards MEK and specific conduct of applicant--Having determined MEK terrorist organization Board ought to then have considered whether applicant "guilty of acts" contrary to UN principles, purposes--To find applicant accomplice, Board had to address whether he shared common purpose with MEK and whether there was personal, knowing participation in MEK--Board did not give reasons in clear, unmistakable terms which show thorough consideration of facts, relevant issues, and thus does not meet standard in Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.)--Although Board made no adverse credibility finding, it ignored applicant's reasons for involvement with MEK, degree of involvement, knowledge of MEK's actions, alternative sources of knowledge, surrounding circumstances--Board failed to ask itself in respect of applicant "what did he know and when did he know"--Board relied upon fact applicant read newspapers, watched television, listened to radio, without considering whether these media outlets subject to government control--"Admissions" relied upon by Board tainted with its failure to distinguish applicant's state of knowledge at time he supported MEK, and his state of knowledge at time of hearing--Board's findings of fact as to applicant's personal, knowing participation, and its finding applicant accomplice, patently unreasonable--Board erred in law as to its legal analysis and sufficiency of reasons--Application allowed-- United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F--UN Security Council Resolution 1377, UN SCOR, 4413th Mtg., UN Doc. S/Res.1377, 2001.