Poshteh v. Canada

Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85 (CanLII)


• The primary issue on this appeal is whether the Immigration Division properly found that, notwithstanding he was under the age of 18 years at the relevant time (a minor), there were reasonable grounds to believe that the appellant, Piran Ahmadi Poshteh, was a member of a terrorist organization for purposes of determining whether he was inadmissible to Canada on security grounds under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

• The appellant is a citizen of Iran, whose father had been a member of the Mujahedin-e-Khalq (MEK), a terrorist organization the overriding goal of which was to overthrow and replace the current Iranian government. After his father’s death in 1999, which he blamed on the American government, the appellant attempted to join the MEK but was denied membership. Nonetheless, he was allowed to participate by distributing MEK propaganda leaflets once or twice a month. He did this from February 2000 until June 2002, when he was almost 18 (17 years and 11 months). He ceased this activity when he was arrested and detained for two weeks by the police. Aside from distributing the propaganda leaflets, he had no other involvement in MEK activities.

• The appellant came to Canada in September 2002 was found to be inadmissible.
• No dispute at FCA that MEK is a terrorist organization
• Rather, the Court assesses, generally, the criteria for membership in a terrorist organization
• The Court also discusses the effect of the applicant’s status as a minor, as well as whether the Court must currently take into account BIOC, despite him no longer being a minor

• “Member” is a term which should be interpreted broadly – terrorist organizations do not hand out membership cards (para 27)
o [37] Here, the Immigration Division based its conclusion on what appears to be a thorough assessment of the evidence. It considered what Mr. Poshteh did, the length of his involvement with the MEK, his attempt to become a formal member and the effect of distributing propaganda. It concluded that Mr. Poshteh’s activity was not minimal or marginal and was sufficient to constitute membership for purposes of paragraph 34(1)(f).

• Court notes that there is a statutory exemption for minors re: criminal inadmissibility resulting from offences under the Contraventions Act or YCJA (s. 36(3) IRPA); however, no such exemption exists under s. 34, security inadmissibility

o [42]However, I do not say that Parliament’s silence on the subject of age in section 34 implies that the individual’s status as a minor is irrelevant to the question of membership. An individual’s status as a minor is widely recognized in both statute and common law and I see no reason why it should be ignored for purposes of paragraph 34(1)(f). (See R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313, at pages 348-351 per Wilson J. dissenting. The majority reasons are not in conflict with her general comments on this point.)

[43]Nonetheless, that recognition of an individual’s status as a minor does not in all cases require a blanket exemption from application of a law to the minor. That is particularly the case where the status of a minor is recognized by the common law but not by statute. In the case of common law recognition, capacity is often viewed on a continuum on which the presumption of capacity increases with the age of the minor. (In the context of criminal law, see R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at pages1319-1320, per Lamer C.J.; in the context of tort law, see R. v. Hill, per Wilson J.,at pages 350-351.)

o [51]For purposes of determining membership in a terrorist organization by a minor, the requisite knowledge or mental capacity should be viewed on a continuum. Just as there would be a presumption against the requisite knowledge or mental capacity in the case of young children, there would be a presumption that the closer the minor is to 18 years of age, the greater will be the likelihood that the minor possesses the requisite knowledge or mental capacity.

o [56]The Immigration Division found that Mr. Poshteh continued his activity with the MEK until he was 17 years and 11 months. Where a minor of that age knows of the violent activity of the organization, becomes involved of his own volition, continues for over two years and leaves only after he is arrested, it cannot be said that it is unreasonable for the Immigration Division not to accept his arguments based on his status as a minor and to find him to be a member of the terrorist organization.

• Convention on Rights of the Child is not applicable here because Poshteh was not a minor when he came to Canada
• Section 7 rights are not engaged by mere findings of inadmissibility – and you can’t argue principles of fundamental justice without first finding that s. 7 rights of life, liberty or security of person are engaged

Poshteh in other case-law:

• See Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86 (CanLII), <http://canlii.ca/t/gh3tv>, particularly on whether Ezokola changed the membership in a terrorist organization test for purposes of s. 34(1)(f) IRPA:

o [12] The appellant submits that the approach of the Supreme Court to complicity in Ezokola reflects broader concerns and articulates principles of interpretation of wider application. The appellant asserts that the Supreme Court’s concern in Ezokola about excluding those who are guilty of no wrongdoing should also guide the interpretation of “membership” under paragraph 34(1)(f) of the Act. It follows, the appellant argues, that membership should not be extended to those who are not involved in terrorist activities or who are loosely linked to a terrorist organization or who are compelled to join a terrorist organization. The appellant further argues that in keeping with the parameters of what the Supreme Court found in Ezokola to be blameworthy conduct, the principled nexus must be a significant contribution to the wrongful actions of the group by a true member who joined without coercion or compulsion.
[13] I disagree that the decision of the Supreme Court in Ezokola requires modification of the legal test for membership in a terrorist organization. I reach this conclusion for the following reasons.
Poshteh is thus still good law with respect to membership in a terrorist organization – doesn’t require a voluntary, significant and knowing contribution as per Ezokola