April 13, 2015
Section 34(1)(f) of the IRPA – membership does not require complicity
Subsection 34(1)(f) of the Immigration and Refugee Protection Act can be used to render an individual inadmissible to Canada for membership in an organisation that has acted contrary to subsections 34(1)(a) to (c). To be clear, a foreign national or a permanent resident may be found to be inadmissible to Canada if there are reasonable grounds to believe that he or she is a member of an organization that is involved in espionage, subversion, or terrorism.
What is meant by “membership” was recently re-examined by the Federal Court of Appeal in Kanagendren v. Canada (M.C.I.), 2015 FCA 86. In Kanagendren, the appellant admitted to being a member of the Tamil National Alliance (TNA). The Immigration Division found that membership in the TNA constituted membership in the LTTE (Liberation Tigers of Tamil Eelam), and that Mr. Kanagendran was inadmissible to Canada for being a member of an organization which was involved in terrorism.
The Federal Court of Appeal was asked to answer the following certified question:
Does Ezokola v. Canada (M.C.I.), 2013 SCC 40, change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the IRPA?
The Supreme Court’s decision in Ezokola examined membership in the context of section 98 of the IRPA, which looked at Article 1F(a) of the United Nations Convention Relating to the Status of Refugees. Article 1F(a) prevents refugee claimants from being found to be refugees if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. The Supreme Court determined that complicity, the actual act of having committed a crime, required that the individual have voluntarily made a significant and knowing contribution to the group’s criminal purpose. This is similar to the complicity requirements in criminal law.
The Federal Court in Joseph v. Canada (M.C.I.), 2013 FC 1101, adopted the Supreme Court’s reasoning for membership and brought it into the assessment of subsection 34(1)(f). Justice O’Reilly concluded:
[14] In my view, while Ezokola dealt with the issue of exclusion from refugee protection, the Court’s concern that individuals should not be found complicit in wrongful conduct based merely on their association with a group engaged in international crimes logically extends to the issue of inadmissibility…
This extension of the principles of Ezokola to admissibility findings under subsection 34(1)(f) has been reversed by the Federal Court of Appeal’s decision in Kanagendren. The Court of Appeal concluded that complicity is not required of subsection 34(1)(f) and that findings under this provision differ from the analysis of Article 1F(a), providing:
[22] In contrast, nothing in paragraph 34(1)(f) requires or contemplates a complicity analysis in the context of membership. Nor does the text of this provision require a “member” to be a “true” member who contributed significantly to the wrongful actions of the group. These concepts cannot be read into the language used by Parliament.
The Federal Court of Appeal’s stance is not unexpected, and does reflect back on previous jurisprudence such as, the often cited, Poshteh v. Canada (M.C.I.), 2005 FCA 85. Membership, for the purposes of subsection 34(1)(f) will continue to have an “unrestricted and broad interpretation”, such that actual participation in the inadmissible behaviour is not required.