Date: 20001004
Docket: IMM-3268-99
BETWEEN:
MOHAMMAD REZA SABOUR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicant, Mohammad Reza Sabour, was refused permanent residence in Canada because of his membership in Anjoman Islamie, an Iranian organization which, in the view of the visa officer, engaged in terrorism. In reaching this conclusion, the visa officer relied on the standard of "reasonable grounds to believe" in clause 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2. Mr. Sabour now challenges this decision, principally on the ground that there was no material before the visa officer to justify the characterization of Anjoman Islamie as an organization engaged in terrorism.
FACTUAL BACKGROUND
[2] Mr. Sabour, 39, is a citizen of the Islamic Republic of Iran. He received a scholarship from the Iranian government to pursue his studies in Canada. Since his arrival in Canada in 1992, he has studied and worked at Concordia University in Montréal, Quebec under various student and employment authorizations. In November 1997, he received a doctorate in geo-engineering from Concordia University. He has also been employed at Concordia as a research assistant and part-time professor in engineering. His academic accomplishments are not in issue.
[3] The applicant acknowledges that he was a member of the Montréal branch of Anjoman Islamie for a period of time between 1993 and 1995. The lack of clarity concerning the precise dates and the duration of his association with Anjoman Islamie is not relevant to this proceeding. The applicant also acknowledges that he acted as the secretary-treasurer of the Montréal chapter for some months. His functions included the collection of fairly modest membership fees.
[4] In June 1995, Mr. Sabour filed his application for permanent residence. The application was processed from the Canadian consulate in Buffalo, New York.
[5] On July 3, 1996, Mr. Sabour was interviewed by a representative of the Canadian Security Intelligence Service in Buffalo. On June 25, 1997, the Director General for Security Screening in C.S.I.S. wrote to the Security Review Division of Citizenship and Immigration to report on the information provided by the application during his C.S.I.S. interview. The C.S.I.S. letter was forwarded to the immigration officials at the Canadian consulate in Buffalo and was part of the information available to the visa officer.
[6] As early as his C.S.I.S. interview in 1996, the applicant acknowledged his involvement in Anjoman Islamie, his role as financial manager for his local chapter and his communications with the Iranian embassy officials in Canada. It is useful to set out at some length the C.S.I.S. summary of the information made available by Mr. Sabour during his interview of July 3, 1996:
| Mr. SABOUR was interviewed by the Service at CIC Buffalo, New York, USA on July 3, 1996 and provided the following: |
| - Mr. SABOUR stated he has been involved with the Anjoman Islamie (AI) in Canada and, in his opinion, the AI is a religious group which assists students by subsidizing some of their living expenses. Mr. SABOUR attended the AI monthly meetings for the first year and a half he was in Canada. He claims in the last two years he has attended only three or four meetings. He stated the AI membership fee is $30.00 for six months which he paid on three occasions covering a year and a half. He claims the monies collected were used to pay for religious ceremonies and services. |
| - Mr. SABOUR claims the student funding originates from the students themselves and not from the Iranian government. He claimed the AI is not political, but only a social and religious student group. Mr. SABOUR acknowledged the previous Iranian ambassador to Canada did occasionally attend some of the AI functions. Mr. SABOUR stated there was no connection between the Iranian Embassy and the AI. |
| - Mr. SABOUR stated he managed the financial affairs of the AI for a six month period claiming he was volunteered to this position. Mr. SABOUR stated there are AI organizations wherever a large number of Iranian students study abroad, but he claims there is no AI organization in the United States. |
| - Mr. SABOUR stated he was an Iranian government sponsored student and owes them approximately $5,000. He does not intend to repay the loan claiming that he does not foresee any difficulties by not paying the Iranian government. He stated the Iranian government wishes to maintain a positive relationship with students as they could be of some benefit to the Iranian government in the future, dealing with business ventures, accommodating delegations, acting as consultants or possibly negotiating with Canadian companies for a better price. |
| - Mr. SABOUR stated he is aware of the presence of the Mujahedin-E-Khalq (MEK) in Canada but does not belong to the organization claiming he does not agree with the use of violence to achieve a political objective. |
| - Mr. SABOUR stated he has had contact with Iranian government representatives. He acknowledged that Iranian students in Canada had an advisor at the Iranian embassy in Ottawa and every six months Mr. SABOUR wrote the advisor in regards to his own situation. He denies being tasked to perform any information gathering functions. [Emphasis added.] |
[7] On April 26, 1999, the applicant was interviewed by the visa officer whose summary of the meeting is set out in his handwritten notes, his CAIPS notes and his affidavit. The handwritten and CAIPS notes were recorded on the same day as the interview. The respondent's negative characterization of the applicant's responses during this interview will be considered, infra paragraphs 17-19, in the light of the information he disclosed in 1996 during the C.S.I.S. interview.
THE VISA OFFICER'S DECISION
[8] In his letter of decision of May 4, 1999, the visa officer explained his determination that the applicant was a person described in paragraph 19(1)(f)(iii)(B) of the Act in these terms:
| I have reached this conclusion because you have stated to me at your interview on 26 April, 1999 that you were a fee-paying member of Anjoman Islamie. You stated that you were, for a period of six months, a member of the Montreal chapter of this organization's executive, in the capacity as the person, as you described it, "responsible for the financial part". You stated that you collected funds for this organization, associated regularly with its members, and participated in the organization of events for Anjoman Islamie. |
| Anjoman Islamie has been identified by credible sources as "comprised almost exclusively of fanatical, anti-American, Iranian Shiite Muslims. The Iranian Government relies heavily upon these students in the United States for low-level intelligence and technical expertise. However, the Anjoman Islamie also represents a significant recourse upon which the government of Iran can draw to maintain the capability to mount operations against the United States, it so decides." |
| At your interview, I expressed to you my concerns that there are reasonable grounds to believe that you are or were a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism. I offered you an opportunity to disabuse me of my concerns. I also advised you that failure to disabuse me would mean that I would not issue a visa to you and that your application would be refused. |
| In rebuttal you stated: |
| - that you were surprised that Anjoman Islamie is associated with terrorism; |
| - that maybe other groups of Anjoman Islamie in other cities were associated with terrorism but yours was not; |
| - that you didn't allow political discussions to take place at the Montreal chapter of Anjoman Islamie. It was strictly religious; |
| - that even when the Ambassador came, though some of the students agreed to let him make some political commentary after your religious proceedings (as he had done elsewhere), you refused to allow this; |
| - that you are a doctor and a professor at the university and you claimed that your background shows that you have no history of terrorism or criminality. |
| In your reply you did not deny that you were an executive member of Anjoman Islamie. You failed to deny that Anjoman Islamie, as an organization, was not engaged in terrorism. Your attempt to portray the activities of Anjoman Islamie as apolitical are not supported by your own statements that both the Iranian Ambassador and an embassy representative from the Iranian Ministry of Culture and Higher Education held regular meetings with Anjoman Islamie members and other Iranian students in Montreal and that you assisted in organizing these meetings. You also provided evidence regarding the debt you owe (approximately $100,800.00) from the scholarship you received from the Iranian Government that give every appearance of being a quid pro quo for your activities on behalf of the Iranian Government. |
| After reviewing the evidence, I have determined that you have failed to disabuse me of my concerns that you are or were a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism. |
THE RELEVANT LEGISLATIVE PROVISION
[9] Clauses (A) and (B) of subparagraph 19(1)(f)(iii) of the Immigration Act deal with an organization's engagement in "espionage or subversion" and "terrorism" respectively:
19. (1) No person shall be granted admission who is a member of any of the following classes:
...
f) persons who there are reasonable grounds to believe
...
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
(A) acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, or
(B) terrorism,
except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;
[Emphasis added.]
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
...
f) celles dont il y a des motifs raisonnables de croire qu'elles :
...
(iii) soit sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée :
(A) soit à des actes d'espionnage ou de subversion contre des institutions démocratiques, au sens où cette expression s'entend au Canada,
(B) soit à des actes de terrorisme,
le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national;
[10] The visa officer's refusal of Mr. Sabour's application for permanent residence was based solely on his membership in an organization concerning which there are reasonable grounds to believe is or was engaged in terrorism. Counsel for the respondent could provide no substantive response when asked whether, at least conceptually, clause 19(1)(f)(iii)(A) concerning acts of espionage or subversion may be relevant to this case. The question arose because the visa officer's decision referred to the Iranian government's reliance upon Anjoman Islamie member-students "... in the United States for low-level intelligence and technical expertise" and the communications between members of the Montreal branch and Iranian embassy officials in Canada.
THE INTERPRETATION OF "REASONABLE GROUNDS TO BELIEVE"
[11] The words "reasonable grounds to believe" have been considered in several decisions.
[12] Counsel for the applicant referred to the decision of the Supreme Court of Canada in R v. Zeolkowski, [1989] 1 S.C.R. 1378, where Justice Sopinka noted at page 1385: "The provincial court judge must simply be satisfied that the peace officer had reasonable grounds to believe as he or she did: in other words, that there is an objective basis for the reasonable grounds on which the peace officer acted." [Emphasis added.]
[13] In Qu v. Canada (Minister of Citizenship and Immigration) (2000), 5 Imm. L.R. (3d) 129 (F.C.T.D.) (now before the Court of Appeal under file number A-289-00), at paragraphs 15 through 21, my colleague Justice Lemieux reviewed the relevant case law concerning the threshold required to establish "reasonable grounds to believe" in the context of section 19. I have also considered similar decisions of Justice Denault in Baroud, Re (1995), 98 F.T.R. 99, and Farahi-Mahdavieh, Re (1993), 63 F.T.R. 120.
[14] As did Justice Lemieux in Qu, I accept the formulation of the standard of proof as stated by Justice Dubé in Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.), at paragraph 27:
| The standard of proof required to establish "reasonable grounds" is more than a flimsy suspicion, but less than the civil test of balance of probabilities. And, of course, a much lower threshold than the criminal standard of "beyond a reasonable doubt". It is a bona fide belief in a serious possibility based on credible evidence. [Citations omitted and emphasis added.] |
[15] The respondent's officials have developed a guideline for the interpretation of "reasonable grounds to believe" which properly situates the standard proof between mere suspicion and the balance of probabilities:
| The words "reasonable grounds to believe" import a standard of proof which lies between mere suspicion and the balance of probabilities. Balance of probabilities is lower than the criminal standard of beyond reasonable doubt. The reasonable grounds standard means that there needs to be an objective basis for the belief and that the Immigration officer must be able to satisfy a third party such as an adjudicator or a court that there are indeed reasons to support the belief. The information on which the belief is based should be compelling, credible and corroborated. [Emphasis added.] |
The requirement, in the department's view, that the information be "compelling, credible and corroborated" is at least as demanding as Justice Dubé's standard of "serious possibility based on credible evidence."
THE APPLICANT'S MEMBERSHIP IN ANJOMAN ISLAMIE
[16] The applicant acknowledges that he was a member of Anjoman Islamie. This acknowledgment is clear from the information provided by the applicant to the C.S.I.S. representative during their meeting of July 3, 1996 and from his responses to the visa officer during their meeting of April 26, 1999.
[17] However, while the applicant's membership in Anjoman Islamie is not really contested in this proceeding, the respondent nonetheless questions the applicant's initial candour on this issue when he met with the visa officer.
[18] It is suggested in the respondent's memorandum of argument that the applicant "concealed" his membership in Anjoman Islamie both in his application for permanent residence and in his initial responses to the visa officer. The respondent's written submissions also suggest that the applicant was less than forthright during his meeting with the visa officer when answering questions concerning the duration of his membership in Anjoman Islamie and the involvement of outsiders, including that of the Iranian Ambassador for Canada.
[19] The record does disclose some minor discrepancies concerning the applicant's involvement with Anjoman Islamie. However, during his meeting with the C.S.I.S. representative, three years prior to and at the same location where he met the visa officer, the applicant acknowledged that: (a) he "attended the AI monthly meetings for the first year and a half he was in Canada"; (b) he paid his six-month membership fee on three occasions; (c) he "managed the financial affairs of the AI for a six-month period"; and (d) "the previous Iranian Ambassador to Canada did occasionally attend some of the AI functions". It is difficult to understand how the respondent can properly state that the applicant, at least initially, "concealed" his Anjoman Islamie activities in view of the information in the C.S.I.S. report which forms part of the tribunal record and was presumably available to the visa officer.
THE ENGAGEMENT OF ANJOMAN ISLAMIE IN TERRORISM
[20] In support of the visa officer's determination that there are reasonable grounds to believe that Anjoman Islamie is or was engaged in terrorism, the respondent relies on one statement attributed to the applicant, two statements from officials of the U.S. Federal Bureau of Investigation and some information provided by the Canadian Security Intelligence Service.
[21] During the interview of April 26, 1999, the visa officer asked the applicant how he could allay his concerns that Anjoman Islamie is or was a terrorist organization. In the relevant paragraph of his affidavit, which substantially reproduces the corresponding portion of his CAIPS notes, the visa officer recorded the applicant's response as follows:
| He replied: He was surprised that Anjoman Islamie is associated with terrorism. Maybe other Anjoman Islamie in other cities were but his was not. He didn't allow political discussions to take place at Anjoman Islamie. It was strictly religious. Even when the Ambassador came some of the students agreed to let the Ambassador make some political commentary after their religious proceedings (as he had done elsewhere) but the applicant refused to allow this. [Emphasis added.] |
[22] The respondent argues that the underlined statement in the response attributed to the applicant constitutes his "admission" which meets the standard of reasonable grounds to believe that Anjoman Islamie is or was engaged in terrorism. I do not agree. The "admission", as recorded by the visa officer, appears to be rhetorical speculation in the context of the applicant's denial that his branch of Anjoman Islamie was associated with terrorism. In his affidavit, the applicant further denied any knowledge that any member of Anjoman Islamie was involved in terrorism either in North America or in Europe. He was not cross-examined. On the record before me, I cannot accept that the vague statement attributed to the applicant by the visa officer constitutes reasonable grounds to believe Anjoman Islamie is or was a terrorist organization.
[23] The respondent also relies on two statements made by senior officials of the Federal Bureau of Investigation. On February 24, 1998, the Chief of the International Terrorism Section participated in a panel presentation before a subcommittee of the U.S. Senate. His presentation covered a number of topics, including the presence of foreign terrorist groups in the United States. Under that heading, the official stated:
| Palestinian Hamas, Iranian-backed Hizballah, and Egyptian-based al-Gama' at al Islamiyya each has established an active presence in the United States. The activities of the American wings of these organizations generally revolve around fund-raising and low-level intelligence gathering. |
| In addition, there are still significant numbers of Iranian students attending U.S. universities and technical institutions. In 1997, 419 student visas were issued to new and returning Iranian students. A significant number of these individuals are hardcore members of the pro-Iranian student organization known as the Anjoman Islamie, which is comprised almost exclusively of fanatical, anti-American, Iranian Shiite Muslims. The Iranian government relies heavily on these students studying in the United States for low-level intelligence and technical expertise. However, the Anjoman Islamie also provides significant resource base which allows the government of Iran to maintain the capability to mount operations against the United States, if it so decided. |
There is no information to explain why visas were issued to "new and returning Iranian students" if a significant number of these were involved in an organization that is or was engaged in terrorism.
[24] On February 4, 1999, the Director of the Federal Bureau of Investigation joined the U.S. Attorney General and the Secretary of State in a presentation before another Senate subcommittee. The Director's statement also covered a number of national security issues, including a review of the international terrorist situation. Under this rubric, the Director referred to groups such as the Lebanese Hizballah, the Egyptian Al-Gama' Al-Islamiyya and the Palestinian Hamas and their supporters in the U.S. who could be used for acts of terrorism. He went on to make specific reference of anti-American terrorist attacks by Hizballah in other countries. Concerning the Anjoman Islamie, the Director added the following comments:
| The activities of American cells of Hizballah, Hamas, and Al Gama' Al-Islamiyya generally revolve around fund-raising and low-level intelligence gathering. In addition, there are still significant numbers of Iranian students attending United States universities and technical institutes. A significant number of these students are hardcore members of the pro-Iranian student organization known as the Anjoman Islamie, which is comprised almost exclusively of fanatical, anti-American, Iranian Shiite Muslims. The Iranian Government relies heavily upon these students studying in the United States for low-level intelligence and technical expertise. However, the Anjoman Islamie also represents a significant resource base upon which the government of Iran can draw to maintain the capability to mount operations against the United States, if it so decides. [Emphasis added.] |
It is the underlined portion of this statement that was relied upon by the visa officer and incorporated in his letter of decision.
[25] The statements of both F.B.I. officials concerning Anjoman Islamie are substantially similar. Neither statement, however, provides any information that Anjoman Islamie is or was engaged in terrorism. The statements provide evidence of Iranian students in the United States being used by the Iranian government "for a low-level intelligence and technical expertise". The organization is described as "a significant resource base upon which the government of Iran can draw to maintain the capability to mount operations against the United States, if it so decides" [emphasis added]. Any suggestion of the involvement of Anjoman Islamie in terrorist activity is purely speculative. In my view, this information does not meet the threshold of reasonable grounds to believe that Anjoman Islamie is or was engaged in terrorism.
[26] Finally, I have also considered carefully the limited general information concerning
Anjoman Islamie and the Iranian Intelligence Services provided by the Canadian Security Intelligence Service in a report to Citizenship and Immigration and referred to by the visa officer in his affidavit:
| 72. ... I noted the information provided by the Canadian Security and Intelligence Service that Anjoman Islamie is an international organization believed to be controlled and sponsored by the Iranian Government in order to exploit its student assets abroad and that Iranian Government activities threaten the security of Canada. |
The visa officer faithfully summarized the brief C.S.I.S. reports. Again, however, this information falls far short of establishing reasonable grounds to believe that Anjoman Islamie is or was an organization engaged in terrorism.
[27] The visa officer also had available to him three decisions of this Court which considered "terrorism" within the meaning of clause 19(1)(f)(iii)(B) of the Act. This case law was forwarded to the Canadian consulate in Buffalo in a memorandum from the Director, Security Review in the national headquarters of Citizenship and Immigration for the purposes of Mr. Sabour's application for permanent residence. In my view, an examination of each of these decisions indicates that the evidence of activity in terrorism was substantially clearer than in this proceeding.
[28] In Noori v. Minister of Citizenship and Immigration, [1996] F.C.J. No. 187 (T.D.), the activities of the Moudjahidin du Peuple (MEK) were under review, and the visa officer had available this information provided by C.S.I.S.:
| Le geste de protestation le plus violent des MEK au Canada a été commis le 05-04-1992 lorsque des membres de l'organisation ont pris d'assaut et occupé l'ambassade d'Iran à Ottawa. L'incident s'est produit parallèlement à des incidents semblables en Allemagne, en France, en Angleterre, en Suisse, en Hollande, en Suède, en Norvège, en Australie et aux États-Unis. |
This extract is from the C.S.I.S. report which forms part of the record in Noori, (court file no. IMM-1814-95), although not recited at length in the decision.
[29] In Kashmiri v. Canada (Minister of Citizenship and Immigration) (1996), 116 F.T.R. 316 at paragraph 2, the activities of an organization directed to securing an independent Kashmir, the Jammu Kashmir Liberation Front, was described by Justice Gibson as having "been linked to acts of terrorism against civilians that are described in documentary evidence". The organization's involvement in terrorism does not appear to have been in issue in Kashmiri.
[30] In Suresh (Re) (1997), 40 Imm.L.R. (2d) 247, Justice Teitelbaum concluded that the activities of the Liberation Tamil Tigers of Eelam in Sri Lanka constituted "terrorism", no matter how that term was defined (at paragraphs 30-33):
| I do not intend to list the incidents the LTTE is said to have committed. One need only refer to Appendix "B" where some 140 incidents are mentioned starting with the alleged LTTE's assassination of Alfred Duraippah, the pro-government mayor of Jaffna on July 27, 1975 to the incident on September 10, 1995 when the LTTE is alleged to have killed seven soldiers who, it is alleged, were part of a road clearing patrol. |
| Witnesses called by Suresh denied most of these incidents as being "terrorist" in nature as, it is alleged, the LTTE can be considered freedom fighters, and therefore have the "right" to shoot at soldiers or persons who do not support the LTTE and their aims. |
| With respect, I disagree. Even if it were so, the LTTE's assassination of the mayor of Jaffna on July 27, 1975 solely on the basis of his pro-government leaning is to me an act that one may consider "terrorist" in nature. The execution of a police constable on February 14, 1977 gives rise to a reasonable conclusion that a "terrorist act" has taken place. The shooting of a member of parliament, who later died, is a "terrorist act". The blowing up of a civilian aircraft is a"terrorist act". Attacks on civilians are, as I have said "terrorist acts" whether the attack is on a fishing village or on farms. The May 14, 1985 LTTE attack and massacre where 138 to 146 civilians at Anuradhapura in Sri Lanka were killed can be considered a "terrorist act". |
| I could go on and on. I am satisfied that there are reasonable grounds to believe the LTTE to have committed "terrorist acts" no matter how one would define "terrorism" or a "terrorist act". |
In Suresh Re, as in Noori and Kashmiri, the decision-maker had available specific information concerning the terrorist activities of each of the organizations under consideration, the kind of evidence not available to the visa officer concerning the Anjoman Islamie in this proceeding.
CONCLUSION
[31] For these reasons, I am satisfied that the decision to refuse the applicant's application for permanent residence because he was a member of an organization engaged in terrorism must be set aside. Even on the standard of "reasonable grounds to believe", the decision was made without regard to the material available to the visa officer.
[32] One procedural issue should be addressed as a postscriptum. The tribunal record filed before this Court was expurgated, apparently because full disclosure would be "contrary to Canada's national interest and impede Canada's law enforcement and investigation efforts". Neither party raised this procedural issue. In response to my question, counsel for the respondent acknowledged that she had access to the unexpurgated copy of the file material available to the visa officer.
[33] According to consulate's transmittal letter which accompanied the tribunal record, the expurgations involved three documents: (a) approximately one-third of the departmental report concerning Mr. Sabour from the Director, Security Review of the national headquarters of Citizenship and Immigration to the consulate, supra paragraph 27; (b) the complete two-page document entitled Rationale for Ministerial Relief, presumably prepared with respect to the saving provision of paragraph 19(1)(f): "except persons who have satisfied the Minister that their admission would not be detrimental to the national interest", supra paragraph 9; and (c) over one-quarter of the four-page report prepared by C.S.I.S. for the Director, Security Review of Citizenship and Immigration, supra paragraphs 5 and 6.
[34] The record before the Court is incomplete. It does not contain all of the information available to the visa officer in reaching his decision that Anjoman Islamie was engaged in terrorism. It was open to the respondent, pursuant to subsection 82.1(10) of the Immigration Act, to make that information available for the purposes of this application for judicial review. The respondent did not do so. This decision is based on the record placed before the Court by the parties.
[35] Accordingly, this application for judicial review will be granted and the matter remitted for redetermination by a different visa officer. Counsel may file submissions concerning the certification of a serious question within fourteen days of the date of these reasons, after having first disclosed to each other their respective positions on this issue.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
October 4, 2000