Date: 20061121
Docket: IMM-7498-05
Citation: 2006 FC 1412
OTTAWA, ONTARIO, November 21, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
ZAHEER
MOHIUDDIN MOHAMMED
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Background
[1]
This is an application pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act (“IRPA”),
S.C. 2001, c. 27, for judicial review of a decision of the Citizenship and
Immigration Officer (“Immigration Officer”) dated December 5, 2005, wherein the
officer found that the Applicant was inadmissible to Canada pursuant to s.
34(1) of the IRPA.
[2]
Zaheer Mohiuddin
Mohammed (the “Applicant”), a Convention refugee, applied for permanent residence in Canada, but his
application was rejected on December 5, 2005, pursuant to s. 34(1)(f) of the IRPA
based on his membership in the Altaf Faction of the Mohajir Quami Movement
(“MQM-A”). The Department of Citizenship and Immigration alleged that it had
information that the MQM-A had engaged in acts of terrorism. The Applicant
admits to being a member of the MQM-A, but disputes that MQM-A is a terrorist
organization.
[3]
A previous s. 44(1) report dated
May 21, 2002, concluded that the Applicant was inadmissible due to his
membership in the MQM. The Respondent then consented to the matter being
re-determined and the file was re-opened.
[4]
The Applicant submits that the
MQM-A is a legal political party in Pakistan and the organization had never engaged in acts of
terrorism, although individual members may have engaged in acts of terrorism.
According to the Applicant, the other faction of MQM, the Haqiqi (MQM-H), did
engage in acts of terrorism.
[5]
In the re-determination, the
Immigration Officer stated:
I have considered the
documentary evidence presented by counsel on record on behalf of Mr. Mohammad,
his admission of his membership with the MQM (Altaf faction) and his support of
the parties’ ideology and principals. It is the officer’s opinion that there
are reasonable grounds to believe that Mr. Mohammad is a member of the MQM
Altaf group, an organization that there are reasonable grounds to believe is or
was engaged in terrorist activity.
Mr. Zaheer Mohiuddin Mohammad
has been reported under 34(1)(F) of the Immigration and Refugee Protection
Act. Further, taking into account the facts of the case, and the responses
from applicant, there has been a direct request for Ministerial Relief
made by the applicant, and the case is referred to the Minister.
[6]
The Applicant was invited to make
submissions under s. 34(2) of the IRPA and he did so, seeking the
Minister’s opinion that his admission would not be detrimental to national
interest. The Immigration Officer also made a s. 44(1) report which is part of the Tribunal
Record. However, this is not being acted upon and is held in abeyance pending
the Minister’s decision under s. 34(2) of the IRPA.
[7]
On December 14, 2005, the
Applicant filed an application for leave and judicial review of the decision of
the Immigration Officer that he was inadmissible pursuant to s. 34(1) of the IRPA.
The request for Ministerial relief is still pending.
Issue
[8]
Only one
issue was argued before me, namely: Is the decision of the Immigration Officer
under s. 34(1) of the IRPA subject to judicial review?
Position of the Parties
[9]
The
Respondent argues that this application is premature. It is the Respondent’s
contention that the Immigration Officer’s decision is an interlocutory decision
and that no judicial review is available until the Minister has rendered a
decision under s. 34(2). According to the Respondent, if the decision of the
Minister is in the Applicant’s favour no review is necessary. However, should
the s. 34(2) decision go against the Applicant, he can at that time seek a
review of the Minister’s decision under 34(2) and/or a review of the
Immigration Officer’s decision under s. 34(1).
[10]
The Applicant
argues that these are two different decisions and that even a positive decision
of the Minister under s. 34(2) won’t wipe out the finding under s. 34(1) that
the Applicant belongs to a terrorist organization. The Applicant relies on the
decision of Madame Justice Mactavish in Ali v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1174.
Analysis
[11]
Both sides
agree that this case is on all fours with Ali, supra. The Respondent
urges me not to follow that case, or if I apply that case, to recertify the
question Justice Mactavish certified, but which the Respondent never appealed. He
contends that it is the practice of the Respondent following a finding of non-admissibility
under s. 34(1) not to proceed with a removal decision when a s. 34(2)
application is outstanding. He points to the CIC Immigration Manual chapter IP
10 which provides in s.10:
Enforcement proceedings are
not automatically held in abeyance due to a request for ministerial relief.
This would include the writing of the A44(1) report, the review of the report,
and the admissibility hearing. However, when deciding whether or not to refer
the report immediately to the Immigration Division pursuant to A44(2), the
Minister’s delegate should consider all the circumstances of the case,
including the request for relief. If positive relief recommendation is being
considered, further enforcement action may be suspended.
(Underlining added)
[12]
According
to the Respondent, IP 10 corresponds to the scheme of the Act and Justice
Mactavish erred when she held otherwise.
[13]
In Ali,
supra Justice Mactavish held at paragraphs 39-46:
Is the Finding
of the Immigration Officer under Sub-section 34(1) an Interlocutory One?
39 It is true that
section 34 deals with the overall question of admissibility to Canada, and that no final determination
with respect to Mr. Ali's admissibility will have been made until such time as
his application for Ministerial relief is finally disposed of. That said, it
does not necessarily follow that the determination by the immigration officer
pursuant to sub-section 34(1) that there are reasonable grounds to believe that
Mr. Ali is a member of a terrorist organization is interlocutory in nature.
40 There are two
components to section 34 of IRPA. When read in conjunction with section 33,
sub-section 34(1) contemplates a determination being made by an immigration
officer as to whether, amongst other things, there are reasonable grounds for
believing that an applicant is a member of a terrorist organization.
41 Sub-section
34(2) contemplates that a different decision-maker - that is the Minister
herself - consider whether the continued presence in Canada of a foreign national such as Mr. Ali would be detrimental to the
national interest.
42 A sub-section
34(2) inquiry is directed at a different issue to that contemplated by
sub-section 34(1). The issue for the Minister under sub-section 34(2) is not
the soundness of the officer's determination that there are reasonable grounds
for believing that an applicant is a member of a terrorist organization - that
determination will have already been made. Rather, the Minister is mandated to
consider whether, notwithstanding the applicant's membership in a terrorist
organization, it would be detrimental to the national interest to allow the
applicant to stay in Canada.
43 In other words,
sub-section 34(2) empowers the Minister to grant exceptional relief, in the
face of a finding that has already been made by the immigration officer.
44 As a result, I
am satisfied that the decision of the immigration officer in issue here did
dispose of a substantive issue raised on Mr. Ali's application for permanent residence
- that is, whether there are reasonable grounds to believe that he is a member
of a terrorist organization. This is not a preliminary or interlocutory step in
the process. It is a finding of inadmissibility, subject to the grant of
exceptional relief based upon a consideration of the national interest.
45 This view is
supported by the fact that once the May 28, 2003 interview with Mr. Ali was
completed, the immigration officer felt it appropriate to prepare a section 44
report confirming her opinion that Mr. Ali was inadmissible.
46 I am also not
persuaded that a positive finding by the Minister in relation to Mr. Ali's
request for Ministerial relief would have the effect of rendering this
application unnecessary or moot. A finding by the Minister under sub-section
34(2) that Mr. Ali's continued presence in Canada would not be detrimental to the national interest would allow Mr.
Ali to be granted permanent residence, which is, after all, what he is seeking.
However, Mr. Ali would still be left with the finding that there are reasonable
grounds for believing that he is a member of a terrorist organization. This is
a very serious finding, and one which may well have ramifications for Mr. Ali
in the future.
[14]
I find
Justice Mactavish’s ruling very persuasive. I also note that IP 10 does not
advance the Respondent’s position. As the above quoted excerpt shows, it
nowhere states categorically that a section 44 report will not be referred to
the immigration division when relief under s. 34(2) is sought. It merely
suggests that all circumstances will be considered.
[15]
I would further
note that there is no time frame set out in s. 34(2) as to when an application
to the Minister under that section may be brought or when the Minister may
exercise his rights under that section. This, in my mind, further undermines
the Respondent’s argument that the decision under s. 34(1) is interlocutory once
relief has been sought under s. 34(2). After all, relief may be sought and granted
even after judicial review has been commenced. (See Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 121.)
[16]
Thus, for both
reasons of judicial comity and because I agree with the logic of her arguments,
I will follow the ruling of Justice Mactavish in Ali, supra.
[17]
No other
point of substance was argued before me. Both parties agree that this case is
practically parallel to Ali, supra. In that case, Justice Mactavish
came to the conclusion:
68. In this case, the
officer’s reasons do not provide an adequate basis for her finding that there
are reasonable grounds to believe that the MQM-A is a group engaged in
terrorist activities. In particular, there is no analysis of the IRB report,
and no identification of which activities on the part of the MQM-A the officer considers
to be terrorist in nature. In my view, in light of the seriousness of the
finding in issue and its consequences for Mr. Ali, it is incumbent on the
officer to provide some explanation for her finding that there are reasonable
grounds to believe that the MQM-A is a terrorist organization. Her failure to
do so constitutes a reviewable error.
[18]
Equally,
in this case, the officer offered no analysis for his reasonable beliefs.
Accordingly, for the reasons given by Mactavish J., the decision cannot stand.
This application for reconsideration will succeed.
Certified question
[19]
Justice
Mactavish certified the following question:
Is a determination under sub-section 34(1) of the Immigration
and Refugee Protection Act a judicially reviewable decision if an
application for Ministerial relief under sub-section 34(2) is outstanding and
no decision has been made on the application for landing?
[20]
The Respondent
did not take that question to the Federal Court of Appeal and no explanation was
provided for not doing so. Counsel for the Respondent simply stated that the
Respondent should have appealed but failed to do so. No compelling public
policy issue has been advanced. The purported operational policy of the
Respondent is not reflected in the immigration manual. This is an issue the Applicant
did not create and one that he had every reason to believe was settled by the
jurisprudence. To revisit this issue now would considerably prolong the time
the Applicant has to wait before the issue of his admissibility is settled. For
all of these reasons, I am not prepared to certify the question again.
ORDER
THIS COURT ORDERS that this application for judicial
review be granted. The decision of Officer Argyrides of December 5, 2005, is set aside and the matter is referred
back to another officer for reconsideration.
“Konrad W. von Finckenstein”
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