2013 FC 876, 2013 FC 876

IMM-3103-12 2013 FC 876 Behzad Najafi ( Applicant ) v. The Minister of Public Safety and Emergency Preparedness ( Respondent ) Indexed as: Najafi v. Canada (Public Safety and Emergency Preparedness) Federal Court, Gleason J.—Toronto, January 16; Ottawa, August 16, 2013.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Judicial review of Immigration and Refugee Board, Immigration Division decision determining applicant inadmissible to Canada pursuant to Immigration and Refugee Protection Act, ss. 34(1) (b),(f); concluding reasonable grounds to believe applicant was or had been member of Kurdish Democratic Party of Iran (KDPI); that KDPI had engaged in subversion by force of two different governments in Iran — Division therefore issuing deportation order against applicant — Applicant, Iranian of Kurdish ethnicity, making successful refugee claim in Canada — However, applicant not obtaining permanent resident status given declaration of inadmissibility sought by respondent under Act , s. 34 as result of involvement with KDPI — Whether Division erring in

interpretation of term “subversion by force” in Act, s. 34(1)(

b) because acts of aggression committed by KDPI against Iranian government authorized by international law as justifiable use of force by repressed people in furtherance of right to self-determination; whether Division erring in finding that applicant member of KDPI because evidence establishing that applicant having only minimal involvement with organization, never actually formal member thereof — Division not erring in declining to consult international law to interpret Act, s. 34(1)(b) — Not committing reviewable error in finding that KDPI constituting organization having engaged in subversion by force of governments in Iran; that KDPI therefore falling within scope of Act, s. 34(1)(b) — As to applicant’s membership in KDPI, evidence in present case coupled with requirement to interpret notion of membership broadly affording Division reasonable basis for concluding that applicant member of KDPI — Finding within range of possible conclusions open to Division; membership finding therefore reasonable — Question certified as to whether Canada’s international law obligations requiring Division, in interpreting Act, s. 34(1)(b), to exclude certain persons from inadmissibility — Application dismissed.

Constitutional Law — Charter of Rights — Fundamental Freedoms —Immigration and Refugee Board, Immigration Division determining, inter alia, that applicant’s rights to freedom of association, freedom of expression guaranteed by Canadian Charter of Rights and Freedoms, ss. 2(d) , 2(

b) not infringed — Whether Division erring in basing

interpretation of term “membership” in Immigration and Refugee Protection Act, s. 34(1) (

f) in part on applicant’s involvement with Kurdish Democratic Party of Iran (KDPI) in Canada; that, in doing so, applicant’s rights to freedom of association, freedom of expression guaranteed by Charter, ss. 2(d), 2(

b) infringed since KDPI legal organization in Canada — Applicant’s claim Division violating freedom of expression thereof under Charter, s. 2(

b) dismissed since applicant not raising argument before Division — Division not erring in finding that Charter not precluding exclusion finding based on applicant’s association with KDPI in Iran, Canada — Applicant’s Charter guarantee of freedom of association not violated because KDPI organization previously engaging in violence; Charter not extending constitutional right to belong to or participate in affairs of organizations engaging in violence. This was an application for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board determining that the applicant was inadmissible to Canada pursuant to paragraphs 34(1) (

b) and (

f) of the Immigration and Refugee Protection Act ; it concluded that there were reasonable grounds to believe that he was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and that the KDPI had engaged in subversion by force of two different governments in Iran. The Division therefore issued a deportation order. The applicant, an Iranian of Kurdish ethnicity, came to Canada and made a refugee claim that was accepted. However, he did not obtain permanent resident status because the respondent sought a declaration of his inadmissibility under

section 34 of the Immigration and Refugee Protection Act . The respondent sought to have the applicant declared inadmissible due to his involvement with the KDPI, claiming that there were reasonable grounds to believe that the applicant was a member thereof and that the KDPI had engaged in the “subversion by force” of the Iranian government such that he was inadmissible to Canada by virtue of paragraphs 34(1) (

b) and (

f) of the Act. The inadmissibility finding has negatively impacted the applicant. In particular, he cannot obtain permanent resident status in Canada without seeking a ministerial exemption, he cannot apply for citizenship or sponsor other family members for permanent residency, and his rights to work, study and enter and leave Canada are also different from those of a permanent resident. The issues were whether the Division erred, in basing its

interpretation of the term “membership” in paragraph 34(1) (

f) of the Act in part on the applicant’s involvement with the KDPI in Canada, and that, in doing so, his rights to freedom of association and freedom of expression guaranteed by paragraphs 2(

d) and 2(

b) of the Canadian Charter of Rights and Freedoms had been infringed since the KDPI is a legal organization in Canada; whether the Division erred in its

interpretation of the term “subversion by force” in paragraph 34(1)(

b) of the Act because the applicant claims that the acts of aggression committed by the KDPI against the Iranian government were authorized by international law as a justifiable use of force by a repressed people in furtherance of its right to self-determination; and whether the Division erred in finding that the applicant was a member of the KDPI because the evidence established that he had only minimal involvement with the organization and was never actually a formal member thereof. Held , the application should be dismissed.

The applicant asserted that the Division’s decision violated both his freedom of expression and freedom of association because the consequences he experienced resulted solely from his association with the KDPI, noting that this organization is neither a terrorist nor a criminal organization but a perfectly legal group in Canada. The applicant’s claim that his freedom of expression guaranteed by

paragraph 2(

b) of the Charter was violated was quickly disposed of since he did not advance this argument before the Division and this, in and of itself, warranted the dismissal of the claim. Regarding the alleged violation of the applicant’s freedom of association, the Division rejected this claim, holding that the inadmissibility finding did not have sufficient negative consequences for the applicant to constitute a breach of his Charter right to freedom of association as guaranteed by paragraph 2(

d) of the Charter. This was so because of the unlikelihood that the applicant would be deported given the circumstances of his case. The Division did not err in finding that the Charter did not preclude an exclusion finding based on the applicant’s association with the KDPI in Iran and Canada. This finding was correct but not necessarily for the reasons offered by the Division.

There was no violation of the applicant’s Charter guarantee of freedom of association because the KDPI is an organization that has engaged in violence and the Charter does not extend a constitutional right to belong to or participate in the affairs of organizations that engage in violence. The Division premised its finding on the conclusion that the impact of the exclusion decision on the applicant was too minimal to warrant Charter protection and this may well have been incorrect as the impacts of the decision on the applicant were not trivial.

However, because the issue of negative impacts did not squarely arise in this case, there was no need to comment on it, and the Division’s determination on this issue was upheld. With respect to the applicant’s claim that the Division erred in failing to appropriately apply international law principles to its

interpretation of “subversion by force” in paragraph 34(1) (

b) of the Act , this argument was rejected. The Division rejected the applicant’s argument based on international law and its analysis was both reasonable and correct. Given the difference in wording between paragraphs 34(1)(

a) and (

b) of the Act, it is clear that Parliament intended that different criteria apply when force is used to subvert a government. When force is present, paragraph 34(1)(

b) of the Act stipulates that exclusion will follow if the individual or the organization he or she is a member of uses force to subvert “any” government. In contrast, if force is not present, exclusion will follow only if the government subverted is a democratic one. Parliament therefore clearly intended that paragraph 34(1)(

b) of the Act should be given broad sweep to include all sorts of regimes, including those that are non-democratic. The legislator chose to render individuals inadmissible in the first instance if, amongst other things, they or their organizations engaged in the use of force to subvert any government. Thus, Parliament intended that the balancing of the soundness of motive for the use of force be a matter for consideration by the Minister under subsection 34(2) of the Act and not for the Division under subsection 34(1). There was no need for the Division to resort to international law to consider whether this well-settled

interpretation of paragraph 34(1)(

b) of the Act ought to be discarded in the applicant’s case in light of the clarity of the provisions in the Act. While the applicant correctly noted that the common law presumes that Parliament and provincial legislatures intend to act in accordance with international law and, most particularly, with Canada’s international law obligations, that presumption cannot be used to override clear provisions of a statute, which is what the applicant sought to do in this case. Thus, the Division did not err in declining to consult international law to interpret paragraph 34(1)(

b) of the Act. It appropriately premised its decision regarding the meaning to be given to “subversion by force” on settled case law, which led to the conclusion that the KDPI is an organization that attempted to subvert the governments in Iran by force. In addition, even if the Division had erred in not considering international law, which it did not, international law principles would not support the applicant’s claim to exclude the KDPI from the purview of paragraph 34(1)(

b) of the Act. Thus, the Division did not commit a reviewable error in finding that the KDPI was an organization that had engaged in subversion by force of the governments in Iran and therefore fell within the scope of paragraph 34(1)(

b) of the Act. The applicant’s argument that the Division unreasonably determined him to be a member of the KDPI since the applicant was never actually a formal member of the organization and only performed a limited number of activities on its behalf was rejected. The evidence in this case, in particular, the activities in which the applicant engaged and the requirement to interpret the notion of membership broadly afforded the Division a reasonable basis for concluding that the applicant was a member of the KDPI.

This finding was within the range of possible conclusions open to the Division and its membership finding was therefore reasonable. Finally, the question as to whether Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1) (

b) of the Act , to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination was certified. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2 ( b ),( d ). Immigration Act , R.S.C., 1985, c. I-2, s. 19(1)( e ) (as am. by S.C. 1992, c. 49, s. 11),( g ). Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 3(3), 13 , 25 (as am. by S.C. 2012, c. 17, s. 13 ), 34 (as am. by S.C. 2013, c. 16, s. 13 ), 35 (as am. idem , s. 14 ), 36, 37 (as am. idem , s. 15 ), 42.1(1) (as enacted idem , s. 18 ), 44(1), 45( d ), 52(1), 74( d ), 115(1),(2). Immigration and Refugee Protection Regulations , SOR/2002-227, ss. 39( c ), 206 , 207 , 212 .

Saskatchewan Human Rights Code (The) , S.S. 1979, c. S-24.1. TREATIES AND OTHER INSTRUMENTS CITED Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) , being Sch. V of the Geneva Conventions Act , R.S.C., 1985, c. G-3 (as am. by S.C. 1990, c. 14, s. 6), Article 1(4). United Nations.

Importance of the universal realization of the right of peoples to self-determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights , adopted by General Assembly Resolution A/RES/37/43 of 3 December 1982. cases cited applied:

Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Dunsmuir v. New Brunswick, 2008 SCC 9,[2008] 1 S.C.R. 190; B010 v. Canada (Citizenship and Immigration), 2013 FCA 87, [2014] 4 F.C.R. 326; Poshteh v. Canada (Ministerof Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487. considered: Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240; Al Yamani v. Canada (Minister of Public Safetyand Emergency Preparedness), 2006 FC 1457, 149 C.R.R. (2d) 340; Al Yamani v.

Canada (Solicitor General), (FC),[1996] 1 F.C. 174, (1995), 129 D.L.R. (4th) 226 (T.D.); Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1S.C.R. 927, (1989), 58 D.L.R. (4th) 577; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; The Queen v. Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200; Saskatchewan (Human Rights Tribunal) v. Whatcott, 2013 SCC 11,[2013] 1 S.C.R. 467; Reference Re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313, (1987),78 A.R. 1; Dunmore v.

Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Health Services and Support — FacilitiesSubsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Ontario (Attorney General) v. Fraser, 2011 SCC20, [2011] 2 S.C.R. 3; Oremade v. Canada (Minister of Citizenship and Immigration), 2005 FC 1077, [2006] 1 F.C.R. 393; Suleyman v.Canada (Citizenship and Immigration), 2008 FC 780, 330 F.T.R. 205; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281;Pfizer Canada Inc. v.

Canada (Attorney General), 2003 FCA 138, [2003] 4 F.C. 95; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, (1998), 161 D.L.R. (4th) 385. referred to: Toussaint v. Canada (Labour Relations Board) (1993), 160 N.R. 396 (F.C.A.); Poirier v. Canada (Minister of Veterans Affairs), (FCA), [1989] 3 F.C. 233, (1989), 58 D.L.R. (4th) 475 (C.A.); R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001]3 S.C.R. 209; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Daniels v. White and The Queen, (SCC),[1968] S.C.R. 517, (1968), 2 D.L.R. (3d) 1; Eyakwe v. Canada (Citizenship and Immigration), 2011 FC 409; Maleki v.

Canada(Citizenship and Immigration), 2012 FC 131; Faridi v. Canada (Citizenship and Immigration), 2008 FC 761; Naeem v. Canada(Minister of Citizenship and Immigration), 2007 FC 123, [2007] 4 F.C.R. 658; Jalil v. Canada (Minister of Citizenship andImmigration), 2006 FC 246, [2006] 4 F.C.R. 471; Kanendra v. Canada (Minister of Citizenship and Immigration), 2005 FC 923, 47Imm. L.R. (3d) 265; Hussain v. Canada (Minister of Citizenship and Immigration), 2004 FC 1196; Kastrati v. Canada (Citizenship andImmigration), 2008 FC 1141; Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association, 2011 SCC 61, [2011]3 S.C.R. 654; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Smithv. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R.3; Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1S.C.R. 27, (1998), 36 O.R. (3d) 418; Oremade v. Canada (Minister of Citizenship and Immigration), 2006 FC 1189; Ismeal v. Canada(Public Safety and Emergency Preparedness), 2010 FC 198; Qureshi v.

Canada (Citizenship and Immigration), 2009 FC 7, 78 Imm.L.R. (3d) 8; Chiau v. Canada (Minister of Citizenship and Immigration), (FCA), [2001] 2 F.C. 297, (2000), 195D.L.R. (4th) 422 (C.A.); Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.); Zazai v.Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 36 Imm. L.R. (3d) 167; Di Bianca v. Canada (Minister of Citizenshipand Immigration), 2002 FCT 935, 224 F.T.R. 168. AUTHORS CITED Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, 37th Parl., 1st Sess., No. 25 (May 15,2001).

House of Commons Debates, 37th Parl., 1st Sess., Vol. 137, No. 78 (13 June 2001), at p. 5099 (Madeleine Dalphond-Guiral). APPLICATION for judicial review of a decision ( ) of the Immigration Division of the Immigration and RefugeeBoard determining that the applicant was inadmissible to Canada pursuant to paragraphs 34(1)(

b) and (

f) of the Immigration and RefugeeProtection Act due to his involvement with the Kurdish Democratic Party of Iran. Application dismissed. APPEARANCES Lorne Waldman and Tamara Morgenthau for applicant. David Cranton and Sophia Karantonis for respondent. SOLICITORS OF RECORD Waldman & Associates, Toronto, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by [1] Gleason J.: The applicant is a citizen of Iran of Kurdish ethnicity. He came to Canada in 1999 and made a refugee claim that wasaccepted.

However, he did not obtain permanent resident status because the respondent sought a declaration of his inadmissibility undersection 34 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA or the Act). [2] More specifically, on March 5, 2010, the respondent issued a report under subsection 44(1) of the Act and on March 2, 2011referred the report to the Immigration Division of the Immigration and Refugee Board (the Division), seeking to have the applicantdeclared inadmissible due to his involvement with the Kurdish Democratic Party of Iran (the KDPI).

The respondent claimed that therewere reasonable grounds to believe that Mr. Najafi was a member of the KDPI and that the KDPI had engaged in the “subversion byforce” of the Iranian government such that he was inadmissible to Canada by virtue of paragraphs 34(1)(

b) and (

f) of the IRPA.

[3] In a decision dated March 8, 2012 [ ], the Division agreed with the respondent and determined that Mr. Najafiwas inadmissible, concluding there were reasonable grounds to believe that he was or had been a member of the KDPI and that the KDPIhad engaged in subversion by force of two different governments in Iran. The Division therefore ruled that Mr. Najafi is inadmissible toCanada and issued a deportation order. [4] In this application for judicial review, Mr. Najafi argues that the Division’s decision should be set aside for any one of thefollowing three reasons: i. The Division erred in basing its

interpretation of the term “membership” in paragraph 34(1)(

f) of the IRPA in part on Mr. Najafi’sinvolvement with the KDPI in Canada. He argues that in so doing the Division infringed his rights to freedom of association and freedomof expression guaranteed by paragraphs 2(

d) and 2(

b) of the Canadian Charter of Rights and Freedoms, being

Part I of the ConstitutionAct, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter) because the KDPI is alegal organization in Canada; ii. The Division erred in its

interpretation of the term “subversion by force” in paragraph 34(1)(

b) of the IRPA because the applicantclaims that the acts of aggression committed by the KDPI against the Iranian government were authorized by international law as ajustifiable use of force by a repressed people in furtherance of its right to self-determination. Mr. Najafi argues that the IRPA must beinterpreted in accordance with international law and, accordingly, that basing an inadmissibility determination on a use of force that isrecognized as legitimate under international law is incorrect; and iii. The Division erred in finding that Mr.

Najafi was a member of the KDPI because the evidence establishes that he had only minimalinvolvement with the organization and was never actually a formal member of it. [5] The applicant submits that the correctness standard of review applies to the first two above errors and that the reasonablenessstandard applies to the final alleged error. [6] The respondent, on the other hand, argues that the reasonableness standard of review applies to each of the errors alleged and thatthe Board’s

interpretation of the terms “member” and “subversion by force” were reasonable, as was its determination that the applicantwas sufficiently connected to the KDPI to be found to be a “member” of the organization within the meaning of

section 34 of the IRPA.More specifically, the respondent asserts that the Division’s dismissal of the applicant’s Charter claims was reasonable, that there was noneed for the Division to have resort to international law to interpret

section 34 of the IRPA, that in any event, international law principlesdo not sanction the use of force by the KDPI and that there was a reasonable basis for the Division’s factual conclusions regarding theapplicant’s membership in the KDPI. [7] For the reasons that follow, I have determined that the Division’s decision should be upheld because it correctly determined thatthe applicant’s Charter rights were not infringed, reasonably determined that he was or had been a member of the KDPI and reasonablyheld that the KDPI had engaged in “subversion by force” of the Iranian governments.

Insofar as concerns the applicant’s invocation ofinternational law, I do not believe that the Division erred in finding there was no need to resort to international law or to depart from thesettled

interpretation of

section 34 of the IRPA. Thus, for the reasons below, this application will be dismissed. I. The Statutory Context [8] Because the applicant’s Charter argument relies in part on the effect of an inadmissibility finding under the Act and because therespondent’s position on the inapplicability of international law rests on the wording of

section 34 of the Act, it is necessary to reviewthe provisions in the Act that are relevant to Mr. Najafi’s claim. Central in this regard is

section 34, which sets out the basis upon whichan individual may be found inadmissible due to membership in an organization that has engaged in subversion by force of a government.At all times relevant to this application, it provided: Security 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 areunderstood in Canada; (

b) engaging in or instigating the subversion by force of any government; (

c) engaging in terrorism; (

d) being a danger to the security of Canada; (

e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (

f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in actsreferred to in paragraph (a), (

b) or (c). Exception(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreignnational who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. [9]

Section 34 is but one of the bases upon which individuals may be found to be inadmissible to Canada; other similar provisionsinclude

section 35, which renders those complicit in human or international rights violations inadmissible, and sections 36 and 37, whichrender inadmissible those who have engaged in serious criminality or who are involved in organized criminality. As Justice de Montignynoted in Stables v.

Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240 (Stables), at paragraph 14, “[t]heinadmissibility provisions of IRPA (sections 34, 35 and 37) aim to protect the safety of Canadian society by facilitating the removal ofpermanent residents or foreign nationals who constitute a risk to society on the basis of their conduct.” [10] In Mr. Najafi’s case, the inadmissibility finding did not make him subject to immediate deportation from Canada. Because he has

been granted refugee status, Mr. Najafi cannot be deported to Iran unless and until the respondent Minister (or one of his delegates)issues an opinion under subsection 115(2) of the IRPA, to the effect that Mr. Najafi “should not be allowed to remain in Canada” in lightof “the nature and severity of [the] acts [he] committed” or in light of the “danger” his continued presence in Canada would pose to “thesecurity of Canada” when balanced with the risk he might face if returned to Iran. [11] That said, the inadmissibility determination is not without impact on Mr. Najafi.

In this regard, he is not entitled to obtainpermanent residency on the same basis as other Convention refugees, but, rather, must instead seek a ministerial exemption to obtainpermanent resident status in Canada. A ministerial exemption may be sought either through a humanitarian and compassionate (H&C)application under

section 25 of the Act or through an application for ministerial relief under subsection 34(2) of the Act. (After the June19, 2013 amendments, the ministerial relief provision is contained in subsection 42.1(1) [as enacted by S.C. 2013, c. 16, s. 18] of theIRPA.) The parties concur that the average processing time for an H&C application is currently approximately 32 to 40 months and thatministerial relief applications take on average 5 to 8 years to be processed. Mr.

Najafi has no right to obtain ministerial relief under eithersection 25 or subsection 42.1(1) of the IRPA, but the Minister is bound to exercise his discretion under these provisions in accordancewith Charter values, as is more fully discussed below. [12] As a protected person without permanent residence status, Mr. Najafi cannot apply for citizenship or sponsor other familymembers for permanent residency (see the IRPA,

section 13). His rights to work, study and enter and leave Canada are also differentfrom those of a permanent resident. In order to work or study, he must apply for a permit (see Immigration and Refugee ProtectionRegulations, SOR/2002-227 (the Regulations), sections 206 and 212). If entitled to work, he will have a social insurance numberbeginning with a “9” (and be easily identifiable as lacking permanent resident status or citizenship), and if entitled to study, Mr. Najafimay be required to pay international student fees. In order to travel as a protected person, Mr.

Najafi must obtain a travel document andan authorization to re-enter Canada from Citizenship and Immigration Canada (see the IRPA, subsection 52(1); Regulations, at paragraph 39(c)).[1] [13] Thus, while the inadmissibility determination will not automatically result in Mr. Najafi’s deportation, it does nonethelessnegatively impact him. II. The Charter Claims [14] With this background in mind, it is now possible to turn to the first issue, namely, the claim that the Division’s decision violatesMr. Najafi’s Charter rights. A. Basis of the Claims [15] As noted, Mr.

Najafi asserts that the decision violates both his freedom of expression and freedom of association because theabove-described consequences flow solely from his association with the KDPI. He notes that the KDPI is not a terrorist or criminalorganization but, rather, is a perfectly legal group in Canada. This fact is not disputed by the respondent. [16] In light of KDPI’s legal status, Mr.

Najafi claims that his case is distinguishable from all the decided cases where similar Charterclaims were dismissed because in those cases, unlike his, the applicants were members of a terrorist or criminal organization but theKDPI is neither. (The cases so distinguished by Mr. Najafi are Stables; Suresh v. Canada (Minister of Citizenship and Immigration),2002 SCC 1, [2002] 1 S.C.R. 3 (Suresh); and Al Yamani v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC1457, 149 C.R.R. (2d) 340 (Al Yamani 2)).

He further argues that while it might have been permissible for the Division to premise itsinadmissibility determination on his actions in Iran (as the Charter does not have extra-territorial reach), the Division’s reliance on hisinvolvement with the KDPI in Canada violates his Charter rights because the mere fact of his association with the KDPI—a legalorganization—has been used by the Division to deprive him of important advantages under the IRPA that other refugees are afforded.

Heargues that the Division is bound to comply with the Charter and that its decision does not do so because his legal association with theKDPI in Canada has been used to ground the inadmissibility finding. He asserts that this erroneous finding is reviewable on thecorrectness standard. [17] Mr. Najafi relies principally on the decision of this Court in Al Yamani v. Canada (Solicitor General), (FC),[1996] 1 F.C. 174 (T.D.) (Al Yamani 1) in support of this Charter argument.

In that case, Justice MacKay held that a decision of theSecurity Intelligence Review Committee and an Order in Council, issued under predecessor legislation to the IRPA, violated thatapplicant’s freedom of association as the deportation order was based solely on Mr. Al Yamani’s association with the Popular Front forthe Liberation of Palestine (PFLP), an affiliate of the Palestine Liberation Organization. [18] The provision in issue in that case—paragraphs 19(1)(e) [as am. by S.C. 1992, c. 49, s. 11] and (

g) of the Immigration Act,R.S.C., 1985, c. I-2—are somewhat similar to paragraph 34(1)(

f) of the IRPA. They provided:

Inadmissiblepersons 19.

(1) No person shall be granted admission who is a member of any of the following classes: … (

e) persons who there are reasonable grounds to believe … (iv) are members of an organization that there are reasonable grounds to believe will (

A) engage in acts of espionage or subversion against democratic government, institutions or processes, as they areunderstood in Canada, (

B) engage in or instigate the subversion by force of any government, or (

C) engage in terrorism; … (

g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger thelives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of anorganization that is likely to engage in such acts of violence; [19] In finding that the former provision in the Immigration Act violated Mr.

Al Yamani’s freedom of association, Justice MacKaywrote (at pages 225 and 226): … by providing ultimately for deportation of permanent residents who are members of an organization loosely defined, the statute doesinfringe on the freedom of permanent residents to associate together in organizations. Often such persons, at least those comparativelynew to this country, may maintain association or membership with organizations, associated with their homelands, many of which mayhave had some historic record of violence but which serve a variety of purposes, as the PFLP was found to do in this case.

To expose allpermanent residents to the possibility of deportation because of their membership in such organizations, in my view clearly infringes ontheir freedom of association. [20] The applicant urges that a similar finding be made in this case. However, as is more fully discussed below, Al Yamani 1 has beenovertaken by subsequent jurisprudence of the Supreme Court of Canada and this Court. B. Analysis i. Freedom of Expression [21] Turning, first, to the alleged violation of the right to freedom of expression guaranteed by paragraph 2(

b) of the Charter, thisclaim may be disposed of quickly as Mr. Najafi did not advance it before the Division and this, in and of itself, warrants the dismissal ofthe claim (Stables, at paragraph 30; Toussaint v. Canada (Labour Relations Board) (1993), 160 N.R. 396 (F.C.A.), at paragraph 6;Poirier v. Canada (Minister of Veterans Affairs), (FCA), [1989] 3 F.C. 233 (C.A.), at page 243). [22] Moreover, even if this were not the case, it is unlikely that Mr.

Najafi’s activities with the KDPI in Canada (which are the onlyactivities he alleges are deserving of Charter protection) would constitute an expressive act to which the Charter’s guarantee of freedomof expression could apply. In this regard, in Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927,the Supreme Court of Canada defined an expressive activity to which paragraph 2(

b) of the Charter applies as one that “attempts toconvey meaning”. It is unlikely that Mr. Najafi’s actions with the KDPI in Canada would fall into this category as he testified that theorganization was a social and cultural one and that he participated in its activities to meet others of Kurdish ethnicity. It is difficult to seehow such actions have any expressive content. Indeed, that is precisely what Justice MacKay determined in Al Yamani 1, where he heldthat paragraph 2(

b) of the Charter was not engaged by a similar claim. ii. The Division’s Treatment of the Claimed Violation of Freedom of Association [23] In terms of the alleged violation of his freedom of association, Mr. Najafi did make this claim to the Division, which rejected it.In this regard, the Division held that the inadmissibility finding did not have sufficient negative consequences for Mr. Najafi to constitutea breach of his Charter right to freedom of association as guaranteed by paragraph 2(d).

The Division reasoned that this was so because itwas unlikely that a danger opinion would be issued under subsection 115(2) of the Act, given that the evidence indicated that Mr. Najafihad not engaged in any behavior that might give rise to such an opinion. Thus, the Division concluded that it was unlikely that he wouldbe deported. As for any inconvenience associated with his possessing only protected person—as opposed to permanent resident—status,the Division held that Mr.

Najafi could apply for ministerial relief under subsection 34(2) of the IRPA, which could well be granted and,therefore, that one could not assume that the inadmissibility finding would have any significant negative consequences for Mr. Najafi.The Division thus held that premising its inadmissibility determination in part on Mr.

Najafi’s legal activities in Canada did not violatehis freedom of association. [24] Assessment of whether the Division’s decision on this point should be upheld requires, first, determination of the applicablestandard of review and second, assessment of the Division’s ruling against that standard. iii. The Standard of Review Applicable to the Division’s Charter Determination [25] As noted, the respondent asserts that the reasonableness standard of review is applicable to the Division’s consideration ofMr. Najaifi’s Charter claim.

In support of this argument the respondent relies on the recent decision of the Supreme Court of Canada in

Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 (Doré), where Justice Abella, writing for the Court, held that thereasonableness standard of review was to be applied to the assessment of Mr. Doré’s claim that the decision of the Disciplinary Councilof the Barreau du Québec violated his right to freedom of expression. In that case, the Council sanctioned Mr. Doré for writing anintemperate letter to a judge and imposed a 21-day suspension of his ability to practice law.

In so deciding, the Council exercised thediscretion it was provided under legislation governing the legal profession in Québec, which affords it the duty to govern the professionand impose sanctions as it deems necessary for failure to meet appropriate professional standards. [26] In her analysis, Justice Abella first noted that the Council, as an administrative decision maker, was bound to “act consistentlywith the values underlying the grant of discretion, including Charter values” (at paragraph 24).

She then considered both the analyticalframework to be applied by a reviewing court to the Charter breach claimed by Mr. Doré and the standard of review to be used by a courtin applying that framework. [27] In terms of the former, Justice Abella noted that the customary test from The Queen v. Oakes, (SCC), [1986] 1S.C.R. 103 (Oakes) for assessing whether a prima facie Charter breach is justified under

section 1 of the Charter (the so-called “Oakestest”), does not fit well when what is being reviewed is a discretionary decision as opposed to a claim that legislation violates theCharter. The Oakes test requires assessment of four criteria to determine if a prima facie breach of a guaranteed right is nonethelessallowable as a “reasonable [limit] prescribed by law as can be demonstrably justified in a free and democratic society”, and thuspermitted by virtue of

section 1 of the Charter. First, the court must assess whether the law being challenged pursues a valid objectivethat is sufficiently important (or “pressing and substantial”) so as to warrant overriding a Charter right. Second, the court must assesswhether the impugned law is rationally connected to that valid objective. Third, the court is called upon to assess whether the meansadopted by the legislator to address the valid objective impair the rights in question as little as possible.

Finally, the law must not have adisproportionately severe effect on those to whom it applies (see Oakes, at pages 138–140). [28] In Doré, Justice Abella rejected the foregoing analysis in favour of a less structured approach for discretionary administrativedecisions that are alleged to affect an individual’s Charter rights. She held in this regard that, as opposed to applying the Oakes test, anadministrative tribunal is instead required to balance Charter values with the statutory objectives enshrined in the statute it is called uponto apply.

This, in turn, requires the decision maker to, first, consider the statutory objectives and, second, assess “how the Charter valueat issue will best be protected in view of the statutory objectives” (at paragraph 56). [29] On review of this sort of discretionary decision, Justice Abella held that the reviewing court is to apply the reasonablenessstandard and assess whether, under that standard, “the decision reflects a proportionate balancing of the Charter protections at play …[which] calls for integrating the spirit of s. 1 into judicial review” (at paragraph 57).

Under the reasonableness standard, the court isrequired to assess whether the result reached by the administrative tribunal falls “ʻwithin a range of reasonable alternatives’” or“ʻpossible, acceptable outcomes’” (at paragraph 56). [30] The respondent argues that the foregoing analysis is applicable to the assessment of the Division’s ruling on Mr. Najafi’s Charterclaim.

I disagree because I believe the framework set out by Justice Abella in Doré applies only to discretionary decisions ofadministrative tribunals (which must reflect Charter values) and not to cases where tribunals are called upon to make substantive rulingson Charter rights. I am of this view for two reasons. [31] First, the language used by Justice Abella in Doré consistently states that the types of administrative decisions to which theframework she posits applies are discretionary decisions.

Thus, there is nothing in that case which would mandate its extension tosituations where administrative tribunals are making substantive decisions on a Charter claim. [32] Second, it has long been considered settled law that in situations where, as opposed to making a discretionary decision, anadministrative tribunal is instead called upon to rule upon a substantive Charter claim (like a claim that legislation is invalid due to itsinfringement of a Charter right), the correctness standard of review is applicable to the judicial review of that decision.

This wasrecognized by Justice Abella in Doré, relying on Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir): “There isno doubt that when a tribunal is determining the constitutionality of a law, the standard of review is correctness (Dunsmuir, at para. 58)”(Doré, at paragraph 43). [33] Recently, in Saskatchewan (Human Rights Tribunal) v.

Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467 (Whatcott), which wasissued after Doré, Justice Rothstein, writing for a unanimous Supreme Court, applied a correctness review to the Saskatchewan HumanRights Tribunal’s decision that the hate speech provisions in The Saskatchewan Human Rights Code [S.S. 1979, c. S-24.1] did notviolate Mr. Whatcott’s freedom of expression. [34] Thus, the Doré analysis does not apply to non-discretionary decisions of administrative tribunals where the tribunal adjudicates aCharter claim.

In those cases, the applicable standard of review is correctness. [35] Turning, then, to this case, to determine whether the Division made a discretionary decision, regard must be given both to thenature of the Division’s decision-making powers under the IRPA and to the type of decision it made in the present case. [36] In terms of the former, the wording of subsection 34(1) of the Act makes it clear that the Division is not charged with makingdiscretionary decisions but, rather, with adjudicating as a matter of right. If the claimant falls within the statutory

definitions, theDivision must issue a removal order. It has no discretion in this regard (see the IRPA, at paragraph 45(d)). The Division’s role is thusentirely different from that of the Minister under subsection 34(2) (now 42.1(1)) of the Act; the Minister, unlike the Division, isexercising a statutory discretion and, thus, his decisions are reviewable under the reasonableness standard for compliance with theCharter in accordance with Doré, but the Division’s decisions are not. [37] In the second place, Mr.

Najafi’s claim before the Division called for an adjudication of his Charter rights as opposed to anexercise of discretion. He argued that he could not be found to be a “member” of the KDPI, within the meaning of subsection 34(1) ofthe IRPA, due to his activities in Canada because such a holding would violate his Charter rights. This claim is conceptuallyindistinguishable from a claim that the statutory provisions are invalid as being overly broad: in both cases the argument is the same,namely, that the applicant’s Charter rights prevent the application of the statutory definition to him.

This is not a matter for the

Division’s discretion—the applicant either possesses the claimed rights or he does not. [38] Thus, both in light of the nature of the tasks assigned to the Division under the IRPA and in light of the nature of the question itwas called upon to decide, the Division’s decision in respect of Mr. Najafi’s Charter claim was not a discretionary one. And it followsfrom the previous discussion that in light of this conclusion the correctness standard of review applies to this portion of the Division’sdecision. iv. Freedom of Association [39] In terms of the merits of the Charter claim, as noted, Mr.

Najafi relies principally on Al Yamani 1 in support of his assertion thatthe Division’s decision violated his freedom of association. The respondent attempts to find a material distinction between the wordingof the Immigration Act and the IRPA, which I do not find convincing. However, the respondent also argues that Al Yamani 1 has beenovertaken by subsequent case law, notably by the decision of the Supreme Court of Canada in Suresh and by Justice Snider’s subsequentdecision in Mr. Al Yamani’s case in Al Yamani 2. The respondent further asserts that application of subsection 34(1) of the IRPA toMr.

Najafi does not violate his freedom of association as he was not prevented from joining the KDPI but rather all that flowed from theassociation was loss of the opportunity to gain permanent residence on the same basis as other refugee claimants. The respondent argues,in reliance on Reference Re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313 (Reference RePSERA) and R. v.

Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209 (Advance Cutting & Coring), that freedom ofassociation extends only to protecting the right of individuals to join an organization to pursue collectively common goals and that thereis nothing in

section 34 of the IRPA which prevented Mr. Najafi from joining the KDPI. [40] I disagree with the last point advanced by the respondent for two reasons. First, the narrow definition of freedom of associationoffered by the Supreme Court of Canada in Reference Re PSERA and Advance Cutting & Coring has been abandoned by the SupremeCourt in subsequent jurisprudence. Notably, in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016 (Dunmore),Health Services and Support — Facilities Subsector Bargaining Assn. v.

British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 (BCHealth Services), and Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3 (Fraser), the Supreme Court held thatfreedom of association extends not only to the bare right of an individual to join an association and participate in its activities but also tocertain of the collective activities of the association itself, like pursuit of labour negotiations on a collective basis. Secondly, the removalof legislated benefits—as opposed to the imposition of a penal sanction for the act of association—may well violate paragraph 2(

d) of theCharter. Indeed, the violations found in Dunmore and BC Health Services were premised on a disentitlement to legislative benefits thatothers were afforded. Thus, the second argument of the respondent is without merit. [41] The same, however, cannot be said of the respondent’s first argument as the respondent is correct in asserting that Al Yamani 1has been overtaken by subsequent jurisprudence. In this regard, the Supreme Court of Canada’s decision in Suresh, in my view, firmlyforecloses Mr. Najafi’s claim to a violation of his paragraph 2(

d) Charter rights. In Suresh, the Court held, in very clear terms, thatfreedom of association does not extend to protect the act of joining or belonging to an organization that engages in violence, noting that“s. 2 of the Charter does not protect expressive or associational activities that constitute violence” (at paragraph 107). [42] The Court also dealt with and squarely dismissed a claim similar to that made by Mr. Najafi regarding the legality of his actionsin Canada: Mr. Suresh argued that all he had done in Canada was raise funds, which is a perfectly legal activity.

The Supreme Court gaveshort shrift to this argument, finding that constitutional protection was not warranted in light of the violent activities of the organizationfor which Mr. Suresh raised funds. That organization was the Liberation Tigers of Tamil Eelam (LTTE), which the Canadian SecurityIntelligence Service had determined to be a terrorist organization.

In addition, the Court noted that any over-breadth in the exclusionprovisions, which could be read as extending to those who innocently joined a terrorist organization without knowledge of its activities,was addressed through a provision similar to subsection 34(2) of the IRPA, under which the Minister, if acting constitutionally, would beprevented from deporting such an individual.

The Court stated in this regard (at paragraph 110): We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute toor become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19classes “persons who have satisfied the Minister that their admission would not be detrimental to the national interest”.

Section 19 musttherefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada,notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish thatthe alleged association with the terrorist group was innocent.

In such case, the Minister, exercising her discretion constitutionally, wouldfind that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds. [43] Following the release of the Supreme Court’s decision in Suresh, in Al Yamani 2, Justice Snider was faced with the adjudicationof a judicial review application of Mr.

Al Yamani in respect of a subsequent exclusion decision, this time made under subsection 34(1) ofthe IRPA. (The matter was heard following the first successful judicial review of the initial decision through Justice MacKay’s decisionin Al Yamani 1, discussed above.) [44] Before Justice Snider, Mr. Al Yamani made arguments similar to those raised by Mr. Najafi in this case.

He asserted that theexclusion finding violated his right to freedom of association (and expression) as well as his right to participate in the Palestinianpeople’s self-determination, arguing that “the right to self-determination is protected internationally and that there is an internationallyrecognized right to belong to an organization that asserts self-determination, even where one or more of the organizations within theumbrella organization may be classified as ‘terrorist’” (at paragraph 41). Justice Snider found this argument to be foreclosed by Suresh,reasoning that Mr.

Al Yamani’s case was “completely on all fours with the issue before the Supreme Court of Canada in Suresh” (atparagraph 43). She thus dismissed Mr. Al Yamani’s Charter claims. [45] A very similar ruling was made by Justice de Montigny in Stables. There, the applicant was excluded under paragraph 37(1)(a)of the IRPA for organized criminality by reason of his membership in the Hell’s Angels. He argued that he had not committed anycrimes and that the exclusionary provision violated his freedom of association.

He also noted that ministerial relief was increasinglydifficult to obtain in the years following Suresh and that this provided a basis for distinguishing his situation from the holding in Suresh,echoing some of the arguments advanced by Mr. Najafi in this case. Justice de Montigny disagreed, and, based on Suresh, held that

Mr. Stables’ right to freedom of association guaranteed by the Charter was not violated by the inadmissibility finding, holding in this regard that “freedom of association has been found to encompass only lawful activities and cannot protect a person who chooses to belong to a criminal organization” (at paragraph 33). [ 46 ] The applicant argues that Suresh , Al Yamani 2 and Stables are distinguishable.

He asserts that the organizations in those cases were found to have been engaged in terrorism or in criminality but that the KDPI has only engaged in attempts to subvert the Iranian governments of the Shah and Islamic Republic by force. In my view, this is not a meaningful distinction, especially on the facts of this case. Suresh turns not so much on the LTTE being a terrorist organization but, rather, on the fact that it had engaged in violence.

And, as concerns freedom of association, the case stands for the proposition that the Charter does not extend protection to the right to join or participate in associations that engage in violence. [ 47 ] That the KDPI is such an organization is not disputed.

Indeed, the evidence before the Division established that the KDPI had engaged in years of violent actions, including a violent insurrection against the Shah in 1967–1968 and armed struggle with the Iranian government in the 1980s and 1990s. [ 48 ] The notion of “subversion by force” may well include a broader range of activities than engaging in violence to overthrow a regime. In Oremade v.

Canada (Minister of Citizenship and Immigration) , 2005 FC 1077 , [2006] 1 F.C.R. 393, Justice Phelan held (at paragraph 27): … the term “by force” is not simply the equivalent of “by violence”. “By force” includes coercion or compulsion by violent means, coercion or compulsion by threats to use violent means, and … reasonably perceived potential for the use of coercion by violent means. This expanded definition has been accepted in other cases, which have indicated that the notion that subversion by force includes accomplishing governmental change by illicit or improper means (see e.g. Suleyman v.

Canada (Citizenship and Immigration) , 2008 FC 780 , 330 F.T.R. 205 ( Suleyman ), at paragraphs 62–64 ; Eyakwe v. Canada (Citizenship and Immigration) , 2011 FC 409 ( Eyakwe ), at paragraphs 30 and 31 ; Maleki v. Canada (Citizenship and Immigration) , 2012 FC 131 , at paragraph 8 ). [ 49 ] I need not decide in this case whether this broader definition of “subversion by force” might violate some other claimant’s paragraph 2(

d) Charter rights if the association to which he or she belonged was found to come within the scope of the paragraph 34(1) (

f) of the IRPA by reason only of having made a threat to use violence or the perception that it might use violence. These issues simply do not arise here because, as noted, the KDPI did engage in violent acts as part of its campaign to overthrow two different regimes in Iran. Thus, the holding in Suresh applies to the applicant, who was associated with an organization that engaged in violence. [ 50 ] It follows, then, that the Division did not err in finding that the Charter did not preclude an exclusion finding based on Mr. Najafi’s association with the KDPI in Iran and Canada.

This finding is correct but not necessarily for the reasons offered by the Division. As indicated, I have determined there was no violation of Mr. Najafi’s Charter guarantee of freedom of association because the KDPI is an organization that has engaged in violence and the Charter does not extend a constitutional right to belong to or participate in the affairs of organizations that engage in violence. [ 51 ] I make no finding as to whether the rationale offered by the Division for its Charter determination is correct.

As noted, the Division premised its finding on the conclusion that the impact of the exclusion decision on Mr. Najafi was too minimal to warrant Charter protection. This may well be incorrect as the impacts of the decision on Mr. Najafi are not trivial, as noted above. However, whether such negative impacts are sufficiently important to warrant Charter protection is more appropriately determined in a case where, unlike here, the issue squarely arises. Thus, I decline to comment on this issue and instead uphold the Division’s Charter determination for the reasons set out above. III.

The International Law Claims [ 52 ] Turning to the second argument advanced by Mr. Najafi, as indicated, this argument involves the claim that the Division erred in failing to appropriately apply international law principles to its

interpretation of “subversion by force” in paragraph 34(1) (

b) of the IRPA . A. Basis of the Claims [ 53 ] More specifically, Mr. Najafi asserts that both the common law and subsection 3(3) of the IRPA require that the Act be interpreted in a manner consistent with international law. He argues that international law recognizes the legality of the use of force in pursuit of a people’s right to self-determination if they are “non-self-governing, and subject to a racist regime, alien subjugation, foreign domination, and exploitation/oppression/repression” (applicant’s memorandum of fact and law, at paragraph 61). Mr.

Najafi filed expert evidence with the Division from two international law experts, which supports the argument that the Kurds in Iran meet this definition of a “people” who may legitimately resort to the use of force in pursuit of its right to self-determination. [ 54 ] One of those experts, Professor Craig Forcese, relies on the language of Article 1(4) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) , [being Sch. V of the Geneva Conventions Act , R.S.C., 1985, c.

G-3 (as am. by S.C. 1990, c. 14, s. 6)] 8 June 1977, 1125 U.N.T.S. 3 (entered into force 7 December 1979, ratified in Canada in 1990) (Additional Protocol I), which states that it applies to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” Professor Forcese argues that peoples using force to pursue self-determination should be considered to be engaged in an internal armed conflict as part of an armed force and thus protected by combatant’s privilege (or combatant immunity) under international law, in light of Article 1(4) of Additional Protocol I. [ 55 ] The other expert, Professor René Provost, argues that “the right of peoples to self-determination is now well entrenched in treaty and customary public international law” and that this right provides, in exceptional circumstances, a legal right to use of force to bring about “external” self-determination (i.e. to create their own state) where the people is being denied the right of self-determination within the state.

Professor Provost also suggests that combatant immunity would apply to such individuals and prevent the imposition of

criminal sanction against those who participate in an armed struggle in pursuit of self-determination in such circumstances. He submits that a third state which surrendered an individual to be punished for participation in such an armed struggle would also be violating international law. [ 56 ] Assessment of Mr. Najafi’s international law-based argument requires consideration of the following issues: first, what standard of review is applicable to this portion of the Division’s decision; second, did the Division commit a reviewable error in failing to consider international law; and, finally, if so, does international law mandate the

interpretation Mr. Najafi advances, namely, that one must exclude from paragraph 34(1) (

b) of the IRPA those organizations who legitimately use force in support of a right of self- determination? B. Standard of Review [ 57 ] In terms of the standard of review, there is a long line of authority which provides that the reasonableness standard is applicable to a decision that an organization falls within paragraphs 34(1) ( a ),( b ), or (

c) of the IRPA as such determinations involve matters of mixed fact and law ( Eyakwe , at paragraph 20 ; Faridi v. Canada (Citizenship and Immigration) , 2008 FC 761 , at paragraph 16 ; Naeem v. Canada (Minister of Citizenship and Immigration) , 2007 FC 123 , [2007] 4 F.C.R. 658, at paragraph 40 ; Jalil v. Canada (Minister of Citizenship and Immigration) , 2006 FC 246 , [2006] 4 F.C.R. 471, at paragraph 19 ; Kanendra v. Canada (Minister of Citizenship and Immigration) , 2005 FC 923 , 47 Imm. L.R. (3d) 265 ( Kanendra ), at paragraph 12 ; Hussain v.

Canada (Minister of Citizenship and Immigration) , 2004 FC 1196 , at paragraph 13 ). The applicant submits that this long line of authority should not be applied in this case as his argument raises a pure question of law and legal issues are subject to review on the correctness standard. He relies on the decision in Kastrati v.

Canada (Citizenship and Immigration) , 2008 FC 1141 ( Kastrati ) in support of the proposition that legal determinations are reviewable on the correctness standard. [ 58 ] Kastrati , however, has been overruled by several recent cases from the Supreme Court of Canada, which have followed Dunsmuir . In Dunsmuir , the Court indicated that typically a tribunal’s

interpretation of its constituent statute falls within the scope of the tribunal’s expertise and thus should normally be afforded deference. In the words of Justices LeBel and Bastarache, writing for the majority, “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (at paragraph 54). The Supreme Court has reconfirmed this in several subsequent cases, underscoring that the reasonableness standard normally should be applied to a tribunal’s

interpretation of its home statute, except when the question is one of general importance for the legal system as a whole, raises constitutional issues (with the exception for discretionary administrative decisions noted above in Doré ), or, possibly, involves a question as to the tribunal’s jurisdiction or a so-called “true questions of vires ” ( Dunsmuir , at paragraphs 57–59 ; see also Whatcott , at paragraph 167 ; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraph 30 ; Canada (Canadian Human Rights Commission) v.

Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471, at paragraph 16 ; Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160, at paragraph 26 ; Celgene Corp. v. Canada (Attorney General) , 2011 SCC 1 , [2011] 1 S.C.R. 3, at paragraph 34 ; Nolan v. Kerry (Canada) Inc. , 2009 SCC 39 , [2009] 2 S.C.R. 678, at paragraph 34 ).

Dunsmuir also indicates that where the previous case law “has already determined in a satisfactory manner” the standard applicable to a particular question, that standard should be applied in subsequent cases without the necessity of resorting to a detailed standard of review analysis (at paragraph 62). [ 59 ] Here, the Division was called upon to determine if the KDPI had engaged in the “subversion by force of any government”, within the meaning of paragraph 34(1) (

b) of the IRPA . This inquiry involves a factual component—regarding what the KDPI did and stood for —and a legal component—regarding the meaning that should be given to “subversion by force”. The long line of authority referred to above indicates that these two inquires are not to be uncoupled from each other to determine the standard of review and that a single standard—that of reasonableness—is applicable. In addition, the legal component of the question involves

interpretation of the IRPA, the Division’s constituent statute and a matter in respect of which the Division possesses considerable expertise. The recent decisions from the Supreme Court of Canada, discussed above, indicate that the reasonableness standard should be applied to review this sort of legal determination. [ 60 ] The standard of review issue in respect of this portion of the Division’s decision is very similar to the issue recently canvassed by the Federal Court of Appeal in B010 v. Canada (Citizenship and Immigration) , 2013 FCA 87 , [2014] 4 F.C.R. 326.

There, the Court was called upon to review the decision of the Division, interpreting the anti-smuggling provisions contained in paragraph 37(1) (

b) of the IRPA . Justice Dawson, writing for the Court, determined that the reasonableness standard applied in light of recent guidance from the Supreme Court of Canada and in light of the fact that the Division was interpreting provisions in the IRPA, as opposed to the international treaties on a related issue.

Likewise, here, the Division was called upon to interpret the IRPA and did not interpret international law, as it found it unnecessary to do so as is more fully discussed below. [ 61 ] Thus, the reasonableness standard is to be applied to review the Division’s determination that the KDPI had engaged in subversion by force of the governments of the Shah and Islamic Republic in Iran. I would note, however, that nothing in this case turns on the selection of the standard of review as the Division’s determination that the KDPI falls within the scope of paragraph 34(1) (

b) of the IRPA is both reasonable and, in my view, correct. C. The Division’s Decision [ 62 ] Having settled the issue of the standard of review applicable to the Division’s determination on this point, it is useful to briefly set out the Division’s reasoning. In this regard, it commenced by reviewing several cases from this Court and the Federal Court of Appeal, which define subversion and indicate “that paragraph 34(1) (b) [of the IRPA ] applies no matter what type of government is involved, and that Parliament intended it to have this broad sweep” (decision, at paragraph 30).

Based on this case law, the Division held that, “subversion by force of a government specifically involves using force with the goal of overthrowing [the] government, either in some part of its territory or in the entire country” (decision, at paragraph 32). It continued, that it was “satisfied that ‘any government’ includes even a despotic regime [and that] the government’s actions, however oppressive they may be, are not relevant to this analysis” (decision, at paragraph 32). The Division then moved on to consider Mr.

Najafi’s argument based on international law and rejected it, holding that previous jurisprudence of this Court, including notably the decisions in Suleyman and Maleki , must necessarily result in the rejection of the argument. The Division noted on this point (at paragraph 33):

The Federal Court’s repeated finding that ‘subversion by force of any government’ applies regardless of the kind of regime subvertedindicates that an analysis of the legitimacy or legality of an organization's armed struggle is not called for in the context of anadmissibility hearing—although presumably it may be very relevant to an application pursuant to IRPA 34(2). The Division therefore rejected Mr. Najafi’s argument based on international law. D. Analysis [63] The foregoing analysis offered by the Division, in my view, is both reasonable and, indeed, correct.

The hallmarks of areasonable decision are that it must be transparent, intelligible and justifiable and that the result reached must fall within the range ofresults that are acceptable in light of the facts and applicable law (Dunsmuir, at paragraph 47). Here, the Division’s decision on thisaspect of Mr. Najafi’s claim meets the first of these criteria as the reasons offered are understandable, logical and sufficient to supportthe conclusions reached.

The second criterion is also met because the result reached is certainly a possible one in light of the wordingcontained in subsection 34(1) of the IRPA and the case law interpreting that provision. Indeed, as indicated, the result reached is alsocorrect. [64] In terms of the Act, paragraph 34(1)(

b) must be contrasted with the preceding paragraph. At all times relevant to this application,the two provided: Security34.

(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 areunderstood in Canada; (

b) engaging in or instigating the subversion by force of any government; [65] Given the difference in wording between the two paragraphs, it is clear that Parliament intended that different criteria apply whenforce is used to subvert a government. When force is present, paragraph 34(1)(

b) of the IRPA stipulates that exclusion will follow if theindividual or the organization he or she is a member of uses force to subvert “any” government. In contrast, if force is not present,exclusion will follow only if the government subverted is a democratic one. Parliament therefore clearly intended that paragraph 34(1)(

b) of the Act should be given broad sweep to include all sorts of regimes, including those that are non-democratic.[2] [66] As the respondent convincingly argues, such intention is evident from the House of Commons debates and the testimony beforethe Standing Committee on Citizenship and Immigration, when these provisions were discussed. The applicant does not contest theappropriateness of having regard to debates in the House of Commons and Committee testimony in interpreting subsection 34(1) and theSupreme Court of Canada has recognized the validity of looking to legislative history in statutory

interpretation cases for background asto the purpose of legislation (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at paragraph 35). As such, thelegislative history of

section 34 can provide helpful context as to its purpose and scope. [67] On May 15, 2001, at the Standing Committee on Citizenship and Immigration, a Bloc Québécois (BQ) member sought to securean amendment to paragraph 34(1)(

b) of the Act by replacing the words “any government” with “democratically elected government”,arguing that “people who want to overthrow a dictatorship should sometimes be thanked” (Standing Committee on Citizenship andImmigration, Evidence [37th Parl., 1st Sess., No. 25] (May 15, 2001): Motion by Ms. Madeleine Dalphond-Guiral). In reply, governmentmembers of the Committee and departmental experts indicated that paragraph 34(1)(

b) was deliberately intended to have a broad sweepand to render inadmissible those who engage in violence against any type of government. They noted that the desirability of nonethelessallowing such individuals admission to Canada would be decided through the exercise of ministerial discretion under subsection 34(2) inappropriate cases (Standing Committee on Citizenship and Immigration, Evidence (15 May 2001): Responses to motion of Ms.Dalphond-Guiral by Mr. Steve Mahoney, Ms. Elizabeth Tromp and Mr. Daniel Therrien). During the House of Commons debate at thirdreading, the BQ member noted that if paragraph 34(1)(

b) had been in force 40 years ago, Nelson Mandela would have been determinedinadmissible as a member of an organization that sought to subvert the South African government because it had on occasion utilizedforce to accomplish this end (House of Commons Debates, 37th Parl., 1st Sess., Vol. 137, No. 78 (13 June 2001), at page 5099(Madeleine Dalphond-Guiral)). [68] In light of the debates, it is clear that Parliament was very much alive to the arguments like those advanced by Mr. Najafi when itenacted paragraph 34(1)(

b) of the IRPA. The legislator therefore must be taken to have chosen to render individuals inadmissible in thefirst instance if, amongst other things, they or their organizations engaged in the use of force to subvert any government. This includesdespotic or oppressive regimes and even regimes that engaged in widespread human rights abuses, like the former government in SouthAfrica. Someone like Nelson Mandela would be entitled to favourable consideration under subsection 34(2) of the IRPA but not undersubsection 34(1).

Thus, it is clear that Parliament intended that the balancing of the soundness of motive for the use of force be a matterfor consideration by the Minister under subsection 34(2) of the IRPA and not for the Division under subsection 34(1). [69] The case law supports this

interpretation. As Justice Mactavish noted in Suleyman, paragraph 34(1)(

b) of the IRPA “proscrib[es]those who have engaged in the subversion ‘by force of any government’ … regardless of the kind of government which is the target ofthe subversion” (at paragraph 60). She thus rejected the applicant’s claim that he ought not have been excluded because the KurdistanWorkers Party was entitled to use force as a last resort against the claimed tyranny of the regime in Turkey and its alleged mistreatmentof the Kurdish people. As was noted by Justice Mactavish, a similar conclusion was reached by Justice Strayer in Oremade v.

Canada(Minister of Citizenship and Immigration), 2006 FC 1189. [70] In my view, there was no need for the Division to resort to international law to consider whether this well-settled

interpretation ofparagraph 34(1)(

b) of the IRPA ought to be discarded in the applicant’s case in light of the clarity of the provisions in the IRPA. Theapplicant is correct in noting that the common law presumes that Parliament and provincial legislatures intend to act in accordance withinternational law and, most particularly, with Canada’s international law obligations (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, atparagraph 53; Daniels v. White and The Queen, (SCC), [1968] S.C.R. 517 (Daniels), at page 541). Indeed, this

presumption is enshrined in paragraph 3(3)(

f) of the IRPA, which provides: 3. … Application(3) This Act is to be construed and applied in a manner that … (

f) complies with international human rights instruments to which Canada is signatory. [71] The presumption that a legislator intends that legislation comply with international law, however, cannot be used to override clearprovisions of a statute, which is what the applicant would seek to do in this case. He argues that the words “any government” inparagraph 34(1)(

b) of the IRPA cannot actually mean what they say, but, rather mean only some governments, namely, those againstwhom the use of force is not authorized by international law. In so arguing, Mr. Najafi seeks to have international law fulfill a functionthat it cannot, namely to take precedence over clear legislative language. In effect, Mr. Najafi argues that his

interpretation ofinternational law should be used in a fashion similar to the Charter and render the unambiguous dispositions of the IRPA inoperative inhis case. [72] International law does not function in this fashion in my view as the presumption of compliance with international law is arebuttable one and may be ousted by clear wording in a statute (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281(Németh), at paragraphs 34 and 35; Daniels, at page 541; Pfizer Canada Inc. v. Canada (Attorney General), 2003 FCA 138, [2003] 4F.C. 95 (Pfizer), at paragraph 20).

In Németh, Justice Cromwell, writing for the Supreme Court of Canada, stated to this effect (atparagraphs 34 and 35): I also accept, of course, that, where possible, statutes should be interpreted in a way which makes their provisions consistent withCanada’s international treaty obligations and principles of international law [… however,] [t]he presumption that legislation implementsCanada’s international obligations is rebuttable. Even more directly, in Pfizer, Justice Strayer indicated (at paragraph 20): … I am of the view that there is no need to resort to these instruments in this case.

I base this conclusion on the long-establishedjurisprudence that while Parliament is presumed not to intend to legislate contrary to international treaties or general principles ofinternational law, this is only a presumption: where the legislation is clear one need not and should not look to international law. [73] Thus, the Division did not err in declining to consult international law to interpret paragraph 34(1)(

b) of the IRPA. Itappropriately premised its decision regarding the meaning to be given to “subversion by force” on settled jurisprudence, which leads tothe conclusion that the KDPI is an organization that attempted to subvert the governments in Iran by force. [74] In addition, even if the Division erred in not giving further consideration to Mr. Najafi’s international law argument, I do not findthat he has established that international law would require the

interpretation of the IRPA he advances. In this regard, it is far fromcertain that international law recognizes a right to use force in furtherance of self-determination in the manner Mr. Najafi suggests. [75] As a starting point, I note that there is no debate that international law recognizes the right of peoples to self-determination. Asboth parties submitted, this right is contained in numerous international treaties and was recognized by the Supreme Court of Canada inReference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217.

Nor is the question of whether this right must beexercised within existing national boundaries or whether, in certain circumstances, unilateral secession may be pursued before me. Theonly issue arising in the present case is whether international law provides the right to use force in pursuit of self-determination. [76] In suggesting that international law does provide this right, and as noted, both of the applicant’s international law experts reliedon the concept of “combatant’s privilege”.

This principle emanates from Additional Protocol I and provides that those participating inarmed conflict (that falls within the bounds of the Protocol and Geneva Conventions) are immunized from the criminal punishment thatwould normally apply to their actions. Professor Forcese asserts that an individual participating in an armed struggle in pursuit of self-determination may be able to benefit from this criminal immunity if certain criteria are met.

Professor Provost states that Canada wouldbe in violation of its international obligations if it were to “give support to the unlawful denial [of the right to self-determination] by[another] state” (affidavit of René Provost, at paragraph 40). [77] There are three central problems with the applicability of “combatant’s privilege” to the applicant. First, even if one accepts thatthe

interpretation of combatant’s privilege asserted by Professor Forcese is correct, the applicant would not meet one of the prerequisitesidentified by the professor in that he did not “perform a continuous combat function” (affidavit of Craig Forcese, at paragraph 43).Second, even if the applicant were to be considered a combatant, which I find unlikely, he would only be protected from criminalsanction, not guaranteed refugee protection. Third, I do not accept that in finding the applicant to be inadmissible under subsection 34(1),Canada is “giving support to the unlawful denial of the right to self-determination by another state”, given the protections provided for inthe Act under

section 25 and subsection 34(2). Thus, I do not find the concept of combatant’s privilege to be of assistance to theapplicant. [78] Professor Provost constructs an additional argument based on the lack of explicit prohibition of the use of force in pursuit of theright of self-determination in international law. However, it is self-evident that a lack of prohibition of the use of force is not the same asa recognized and established positive right that should inform Canadian domestic law. I would additionally note that the applicability ofsuch a norm to Canada, even if it were cle

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