Date: 20100119
Docket: IMM-1450-09
Citation: 2010 FC 51
Ottawa, Ontario, January 19, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ZAHEER
MOHIUDDIN MOHAMMAD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
March 10, 2009 decision of an immigration officer finding the applicant to be
inadmissible to Canada pursuant to paragraph 34(1)(f) of the Act.
[2]
The
applicant requests that the officer’s decision be set aside and the matter
referred back to a different officer for redetermination.
Background
[3]
Mohammad
Zaheer Mohiuddin (the applicant) was born in Karachi and is a
citizen of Pakistan. He belongs
to an ethnic subgroup of Mohajirs in the Southern Pakistan province of Sindh.
Most Urdu-speaking Mohajirs residing in Pakistan were of
families who had fled India pursuant to that country’s 1947 partition.
The Mohajir Quami Movement (MQM) was formed in 1984 to represent the interests
of Sindh’s Urdu-speaking Mohajirs.
[4]
Immediately
after admission to college in 1987, the applicant joined the All Pakistan
Mohajir Student Organization (APMSO), the student wing of the MQM of which he
was also a member.
[5]
The
applicant was an active member of the APMSO and worked for the MQM. In
September of 1988, the applicant was appointed Joint Secretary of the APMSO at
his college for one year. After ceasing to be Joint Secretary in 1989, the
applicant continued to be active in the APMSO, volunteering at most events.
Most of the applicant’s activity in the MQM was volunteer work on an events
basis during election campaigns and at charitable events. In 1989, the
Pakistani government took a hard stance against the MQM (dubbed Operation Clean-up),
causing the applicant and many other MQM workers, to leave Sindh province or to
hide. From 1992 to 1997, the applicant was periodically in hiding in other
regions of Pakistan. During
those periods, the applicant was not involved with the MQM on a regular basis,
but did meet with non-Urdu speakers at various locations to explain what the
MQM stood for and to dispel negative MQM opinions.
[6]
In
all, the applicant was a member of the APMSO from September 1987 to June 1992,
was a worker for the MQM from June 1987 to December 1997 and was a worker for
MQM(Canada) from
January 1998 to May 2005.
[7]
The
applicant came to Canada on January 2, 1998 seeking refugee protection
which was granted on December 4, 1998. The circumstances leading to his
application for refugee status are as described in his Personal Information
Form (PIF). In his refugee application, the applicant claimed that his membership
in the above organizations resulted in harassment by Pakistani officials.
[8]
The
applicant’s application for permanent residence was approved in principle on
February 17, 1999 although a background check was requested. The applicant was
interviewed by the Canadian Security Intelligence Service (CSIS) on November
18, 1999. Since then, the applicant has been the subject of three separate
inadmissibility findings pursuant to paragraph 34(1)(f) of the Act or the corresponding
section of the former Immigration Act.
[9]
On
May 8, 2002, the applicant attended an admissibility interview with an
immigration officer. By letter dated May 21, 2002 the applicant was advised that
he was inadmissible under subparagraph 19(1)(f)(iii)(b) of the former Immigration
Act. The applicant applied to this Court for judicial review, but the
matter was settled prior to the hearing because the Minister of Citizenship and
Immigration agreed to remit the matter back for determination by another
officer.
[10]
By
a decision dated December 5, 2005, the applicant was found inadmissible
pursuant to paragraph 34(1)(f) of the Act due to his membership in the MQM. In Mohammed
v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1767, this Court quashed
the decision and sent the matter back for redetermination by a different
officer. The only issue in that case was whether the immigration officer’s
decision was subject to judicial review. In November 2008, Officer A. Sorenson
sent a letter to the applicant again stating that the CIC possessed information
that the applicant may be inadmissible to Canada pursuant to paragraph 34(1)(f)
of the Act due to the applicant’s membership with MQM. An information package
about the MQM was attached. The applicant sent a responding letter containing a
revised application for permanent residency and a package of information on MQM
to counter CIC’s information. The package included transcripts of evidence
given by Dr. Lisa M. Given and Dr. Gowher Rizvi at a refugee hearing in 2006
(the expert transcripts).
[11]
On
February 3, 2009, the applicant attended an interview at Scarborough CIC
accompanied by counsel. At the interview, the applicant took issue with the
term “membership”, and would only admit that he worked for the MQM during the
years in question. When asked about MQM violence from 1987 to 1992 and from
1992 to 1997, the applicant stated that the MQM was never violent and it never
supported or promoted violence. The applicant added that any violence that may
have occurred in 1995 would have been caused by rogue MQM members acting
against the group’s sanctioned activities. The applicant also responded to the
reports of MQM violence by stating that most of the reports cited by CIC came
from Pakistani newspapers which were biased against the MQM. In submitting that
the MQM-A was not a terrorist group, the applicant pointed out that the United
States Assistant Secretary of State went to meet with MQM-A leader, Altaf
Hussain and also mentioned that the MQM mayor of Karachi was
well-respected. He also questioned the fact that all of the CIC’s documents
were written by people who were not actually present during the reported
violence. Finally, the applicant pointed out that any MQM violence was likely
attributable to the MQM-Haqiqi (MQM(H)) faction, which had been removed from
the party, or other rogue members.
The Officer’s
Decision
[12]
In
his decision dated March 10, 2009, Officer A. Sorensen, (the officer)
determined that the applicant was a member of the MQM/MQM(A) and its student
wing, APMSO and that there were reasonable grounds to believe that the
MQM/MQM(A) had engaged in terrorism.
[13]
The
officer determined with little analysis that the applicant’s involvement in the
MQM-A and the APMSO constituted membership in both organizations. In making
this determination, the officer reviewed the broad and unrestricted definition
of “member” in Canada’s Enforcement Manual 2 Section 4.5, and
reviewed the applicant’s 1998 PIF (in which he described himself as a member of
both organizations) and his applications for permanent residence. The officer
also determined that during the period from 1992 to 1997, the applicant was an
advocate for the MQM.
[14]
The
applicant’s involvement with MQM-A and APMSO was confirmed during the interview
on February 3, 2009.
[15]
The
officer then reviewed the following sources of documentary evidence on the MQM (CIC’s
sources):
-
IRB’s
November 1996 Paper, “Pakistan: the Mohajir Qaumi Movement (MQM) in Karachi January 1995
to April 1996”: described the origins of the MQM and the APMSO, both founded
by Altaf Hussain in 1984 and 1978 respectively.
-
Jane’s
World Insurgency and Terrorism profile (Jane’s): chronology of major MQM-A
events including:
- 1986 –
Altaf Hussain told an MQM rally that Mohajir men should stockpile weapons. At
another rally he said, “if our rights are not given to us we will use every
kind of force”.
- 1988 – the
MQM was believed to have perpetrated the killings of 90 Sindhi’s in various
incidents.
- 1990 –
violent rioting and political terror took place in Karachi and Hyderbad;
the MQM refused to participate in a conference to broker peace in Sindh.
-
New
York Times, 1986 report on widespread violence between the Mohajirs and other
groups in Karachi.
-
A
document titled: “Muttahida Quomi Mahaz, Terrorist Group of Pakistan” issued by
the South Asian Terrorism Portal (SATP).
-
An
academic article from the Asian Survey describing the creation of the
MQM as the result of ethnic violence.
-
Reports
of violence in 1995 when the MQM reportedly engaged in terrorist activities by
starting riots and having its members storm anti-MQM neighbourhoods. Sources
stated the violence stemmed from the killing of a high ranking MQM member and
the rape of the sister of an MQM member.
- The officer
reviewed and quoted articles from the following sources: IRB, Toronto Star, New
York Times, Reuters News and Agence France-Presse.
-
Amnesty
International’s 1996 paper, “Pakistan: Human rights crisis in
Karachi”
outlines violence and human rights abuses attributed to the MQM during the 1995
Karachi riots.
[16]
The
officer set out the definition of terrorism adopted by the Supreme Court in Suresh
v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 98:
… any act intended to cause death or
serious bodily injury to a civilian, or to any other person not taking an
active part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a population,
or to compel a government or an international organization to do or to abstain
from doing any act.
[17]
The
officer also reviewed the applicant’s material including:
-
Manifesto
of MQM (Pakistan).
-
Articles
from the MQM website.
-
Articles
about the South Asian Terrorism Portal, which questioned the SATP’s objectivity
and the character of its director.
-
Pictures
of MQM(Canada) officials
with Prime Minister Stephen Harper at a campaign stop.
-
Articles
about Altaf Hussain’s meetings with western government officials.
-
The
expert transcripts.
-
Affidavit
of Dr. Lisa Given – University of Alberta, dated September 21,
2006, including Curriculum Vitae and testimony at a refugee hearing before the
RPD
-
MQM
research by Dr. Gowher Rizvi – Harvard. Curriculum Vitae and his testimony
before the RPD in 2006.
[18]
The
officer noted that Dr. Givens stressed possible problems with the research
methodology found in some of the CIC sources, namely Jane’s and Amnesty
International. The officer also noted that Dr. Givens did not discuss any
problems with many of CIC’s sources and that CIC relied on many distinct
sources for information on MQM, and not just Jane’s and Amnesty International.
[19]
The
officer also took issue with Dr. Given’s critiques and noted that Jane’s and
Amnesty International have been upheld as reliable sources by the IRB and
courts. Despite the critiques, the officer stated that he was satisfied that
CIC’s sources, when considered together, were reliable and valid.
[20]
The
officer noted that Dr. Rizvi’s 2006 statement and testimony was that the MQM
did not subscribe to violence, but also noted that Dr. Rizvi could not deny
that individual MQM members had engaged in violence.
[21]
The
officer concluded that given his review of the above sources and the expert transcrips,
he was satisfied that the MQM-A has engaged in acts of terrorism, and was not
satisfied that MQM-A acts of terrorism could be attributable to members acting
individually.
[22]
In
conclusion, the officer determined that after reviewing the documents on file
there are reasonable grounds to believe that the MQM or MQM-A engaged in acts
of terrorism referred to in paragraph 34(1)(c), that the APMSO is the student
wing of the MQM, that the applicant’s involvement with both organizations
constituted membership. Therefore, the applicant is inadmissible to Canada.
Issues
[23]
The
applicant submitted the following issues for consideration:
1. Did
the officer err in law because he failed to consider the proper test for when
an organization qua organization engages in acts of terrorism?
2. Did
the officer err in law in his finding that MQM(A) has engaged in acts of terrorism
because he failed to explain how he understood and applied the definition of
“terrorism” and failed to provide a proper analysis and reasons for his
conclusion?
3. Did
the officer err in law by misunderstanding the expert evidence of Dr. Given and
Dr. Rizvi by failing to provide valid reasons for not accepting the expert
evidence?
[24]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the officer analyse and apply the evidence to the definition of terrorism
correctly?
3. Was
it reasonable for the officer to conclude that there were reasonable grounds to
believe that the MQM-A is an organization that has engaged in acts of
terrorism. In particular:
a. Was
it reasonable to reject the applicant’s evidence that violent acts were only
committed by rogue members?
b. Did
the officer disregard the expert transcripts?
Applicant’s Written
Submissions
[25]
The
applicant submits that the appropriate standard of review is reasonableness.
The test when
an organization engages in acts of terrorism
[26]
The
applicant submits that the case raises a serious issue as to the proper test to
be applied when determining that an organization engages in acts of terrorism. The
applicant admits that there were members of the MQM(A) who engaged in violence,
but submits that the official position of the leadership of the MQM is to not
condone or encourage any violence, and that members who engaged in violence
were expelled. It was the MQM(H) which engaged in acts of violence that might
constitute terrorism, and the MQM(A) deny any connection with the MQM(H). While
the officer concluded that members of the organization engaged in acts of
terrorism he was required to find that the organization itself engaged in such
acts, and to provide some legal reasoning for his position. This is because the
legislation refers to organizations that commit acts of terrorism, not members
or activists of an organization who commit acts of terrorism. The officer failed
to understand this difference. Nowhere in his reasons did he refer to the MQM’s
manifesto or political platform, or the fact that the organization rejected
violence.
[27]
The
applicant submits that there was nothing in the MQM Manifesto or the Philosophy
of “Realism and Practicalism” by Altaf Hussain to indicate the MQM believes in
or advocates for violence. On the contrary, the documents disclose belief in
tolerance, democracy and equal rights. The officer was also provided with a
policy statement by Altaf Hussain responding to the Pakistani authorities’
unfounded allegations. Moreover, significantly, neither Canada nor the US has declared
the MQM(A) to be a terrorist group, and the MQM(A) operates openly in Canada.
[28]
The
applicant submits that the MQM(A) is a political party in Pakistan with
representation in the Legislature and Cabinet in Sindh and the National
Parliament and Senate. The MQM(A) also operates openly in the UK where its
head office is located.
Lack of
proper analysis in determining the MQM(A)’s involvement in acts of terrorism
[29]
The
applicant submits that the officer erred in law because he failed to explain
how he understood and applied the definition of terrorism, thereby failing to
give proper analysis and reasons for his conclusion.
[30]
The
applicant submits that the officer just recited documented incidents of
violence. The officer recited the correct stipulative definition of terrorism
adopted in Suresh above, and concluded that his review of documentation from credible
sources described that the MQM(A) engaged in acts of terrorism. In Fuentes
v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 540, Mr. Justice
Lemieux concluded that there must be an evidentiary foundation to support a
finding that an organization was engaged in acts of terrorism. In Ali v. Canada
(Minister of Citizenship and Immigraiton), 2004 FC 1174, this Court
expressed concern when an officer failed to identify specific acts carried out
by the MQM(A) that would meet the Suresh definition of terrorism, or to
provide any analysis of that evidence. Additionally in Alemu v. Canada (Minister of
Citizenship and Immigraiton), 2004 FC 997, this Court indicated that
the decision maker must specify what acts the organization is engaged in. In Jalil v. Canada (Minister
of Citizenship and Immigration), 2006 FC 246, [2006] 4 F.C.R. 471 (Jalil
2006) at paragraph 32, the Court held that the officer has to provide the
definition of “terrorism” and explain how the listed acts met the definition.
See also Naeem v. Canada (Minister of Citizenship and
Immigration), [2007] 4 F.C.R. 658, [2007] F.C.J. No. 173 at paragraph 46,
where Madam Justice Dawson held that it was incumbent on the officer to explain
why she viewed certain acts to be terrorist acts.
[31]
The
applicant submits that under the approach required by Fuentes, Ali and
Alemu, an officer must find that the acts committed must be intended to
cause death or serious bodily injury, the act must be committed against
civilians, and the purposes of the act must be to intimidate a population or to
compel a government to do or to abstain from doing any act. In the case at bar,
the officer failed to discuss why he viewed these violent acts as terrorism.
Importantly, the officer never made any findings of fact with respect to the
purpose of the acts and whether they were part of MQM(A)’s purposes or endorsed
by MQM(A) leadership.
[32]
The
applicant submits that the New York Times report from 1986 only refers to
generalized violence in Karachi and in fact discusses
events wherein Mohajirs are the victims of violence, and where the government
blamed disgruntled drug and arms traffickers for the violence.
[33]
The
applicant submits that the Jane’s report on the MQM(A) is of questionable
reliability and trustworthiness and cannot be characterized as providing
“credible and compelling” information in order to meet the “reasonable grounds
to believe standard” as articulated in Mugesera v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39
(QL).
[34]
The
applicant submits that many of those instances of violence occurred in June and
July 1995 in Karachi when the
applicant was not there. The officer should not have relied on evidence from
1992 to 1997 since the applicant was not an active member of MQM(A) at this
time and was in hiding.
Misconstruing
expert evidence
[35]
The
applicant submits that the officer misconstrued, ignored and failed to provide
reasons for rejecting the expert evidence of Dr. Givens and Dr. Rizvi. Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 (QL) teaches of the
importance of expert evidence in resolving contested factual issues.
[36]
The
applicant submits that the officer failed to understand the purpose of Dr.
Given’s evidence, which was to provide an outline of how to judge the
reliability and credibility of source information and that this was a
reviewable error. Dr. Given stressed that issues of authority, currency,
objectivity and coverage must be addressed. These issues went to the heart of
the reliability of the documents relied on by the officer. She also warned of
the phenomenon when one document gets unwarranted credibility simply because it
becomes a source for other documents. The officer’s failure to explain then why
he still accepted the evidence from Jane’s and Amnesty despite Dr. Given’s
critiques, is a reviewable error.
[37]
The
applicant submits that the officer erred in law by failing to provide analysis
and reasons why he rejected Dr. Rizvi’s evidence. This was a more egregious
error because the evidence corroborated the applicant’s testimony regarding the
policies of MQM(A). This Court has held that the more important the evidence
that is not mentioned specifically and analysed in the tribunal’s reasons, the
more willing the Court will be to infer that the tribunal made findings of fact
without regard to the evidence before it. (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No.
1425 (F.C.T.D.) (QL)). Dr. Rizvi is highly renowned in Pakistan politics and
was a disinterested party in the case, agreeing to testify free of charge in
order that the truth get out. Dr. Rizvi was unequivocal that MQM(A) did not
subscribe to violence and is a democratic political party. Dr. Rizvi’s
documentation also stated that the Pakistani military has been quick to ban political
parties in the past but has never banned MQM, and that the MQM advances secular
goals. None of this crucial evidence was considered by the officer.
Respondent’s Written
Submissions
[38]
The
respondent agreed that for inadmissibility decisions based on paragraph
34(1)(f) of the Act, the appropriate standard of review is reasonableness. Such
a decision is fact-based, discretionary, and involves the interpretation of the
decision maker’s own statute and policies.
[39]
The
respondent then submits that due to his PIF, his specific admissions, and the
law regarding “membership”, the applicant falls well within the ambit of
“member” in paragraph 34(1)(f) of the Act.
Officer’s
reasonable grounds to believe
[40]
The
respondent submits that there is no requirement for direct evidence that
terrorist acts were officially sanctioned. The law only requires the officer to
determine whether there is enough evidence to establish that the organization
sanctioned the acts.
[41]
The
respondent then submits that evidence of the MQM-A leader’s personal
involvement in promoting violence and evidence of the MQM-A head office’s role
in coordinating violence are enough to establish that the MQM-A sanctioned the
terrorist acts.
[42]
The
respondent argues that this Court has affirmed findings that MQM-A is an
organization described in paragraph 34(1)(f) in several recent cases (see Omer
v. Canada (Minister of Citizenship and Immigration), 2007 FC 478, [2007]
F.C.J. No. 642 (QL) at paragraph 31, Jalil v. Canada (Minister of
Citizenship and Immigration), 2007 FC 568, [2007]
F.C.J. No. 763 (QL) (Jalil 2007), Jilani v. Canada (Minister of
Citizenship and Immigration), 2008 FC 758, [2008] F.C.J. No. 974 (QL) at
paragraph 16, Memom v. Canada (Minister of Citizenship and Immigration),
2008 FC 610, [2008] F.C.J. No. 779 (QL) at paragraphs 29 and 30 and Qureshi
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 7, 78 Imm. L.R. (3d) 8, at paragraph 32).
[43]
The
respondent further submits that the applicant’s arguments that he was not
involved or was not even in the area during MQM-A’s alleged terrorist acts are
without merit. The legislation does not require complicity, nor is there a
temporal requirement. The question is only whether the person is or has been a
member of that organization (see Al Yamani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1457, [2006] F.C.J. No. 1826 (QL) at
paragraphs 11 and 12).
[44]
The
legislation only requires that there are reasonable grounds to believe that the
organization does, has or will engage in acts of terrorism. It does not require
proof.
[45]
The
respondent submits that the officer set out the correct definition of terrorism
from Suresh above, considered the acts of violence attributed to the
MQM-A and determined that those acts constituted acts of terrorism. This
follows the process set out by Mr. Justice Teitlebaum in Jalil above,
at paragraph 18.
[46]
In Jalil
2007 above, at paragraphs 33 to 35, it was held that the same MQM-A
activities cited by the officer in this case constitute terrorism under Suresh,
because they were committed for political purposes and caused death or serious
bodily injury.
Expert transcripts
[47]
The
applicant’s arguments regarding the officer’s assessment of the expert
transcripts amount to a disagreement with the officer’s weighing of the
evidence. The respondent submits that the officer discussed each expert’s
transcript in detail and considered their arguments, but in the end described
why he preferred the other evidence. This weighing of the evidence is within
the officer’s discretion.
Analysis and
Decision
[48]
Issue
1
What is
the appropriate standard of review?
This Court
has previously held that the standard of review applicable to a determination
of whether an organization is one for which there are reasonable grounds to
believe engages, has engaged, or will engage in acts of terrorism pursuant to paragraph
34(1)(f) of the Act is reasonableness (see Qureshi v. Canada (Minister of Citizenship
and Immigration),
2009 FC 7, 78 Imm. L.R. (3d) 8 at paragraph 16, Daud v. Canada (Minister of
Citizenship and Immigration), 2008 FC 701, [2008] F.C.J. No. 913 (QL) at
paragraph 5, Jalil v. Canada (Minister of
Citizenship and Immigration), 2007 FC 568, [2007]
F.C.J. No. 763 (QL) (Jalil 2007) at paragraph 15, Jalil v. Canada (Minister of Citizenship and Immigration), 2006 FC 246, [2006] 4 F.C.R. 471 (Jalil 2006) at
paragraphs 19 and 20). I agree that reasonableness is the appropriate
standard or review.
[49]
It
bears noting that applying the standard of reasonableness in these cases involves
an added wrinkle, for the legislation itself contains the qualification that
there need only be “reasonable grounds to believe”. Therefore, to require on
review that those reasonable grounds to believe did in fact exist, would be to
apply a correctness standard. Applying the reasonableness standard means the Court
does not need to satisfy itself that reasonable ground to believe existed, only
that the officer’s conclusion that there were reasonable grounds to believe,
was a reasonable conclusion on his or her part.
[50]
The
“reasonable grounds to believe” standard mandated by section 33 of the Act has
been held to require more than mere suspicision, but less than the civil
standard of or proof on a balance of probabilities. It is a bona fide
belief in a serious possibility based on credible evidence (see Jalil 2006 at paragraph
27).
[51]
The
“reasonable grounds to believe” standard however does not apply to an officer’s
determination of law (see Mugesera v. Canada (Minister
of Citizenship and Immigration), [2005] 2 S.C.R. 100, [2005] S.C.J.
No. 39 (QL) at paragraph 116). What constitutes an act of terrorism is a
matter of law. While the officer need only to have had reasonable grounds to
believe that an act occurred, and may make findings of fact regarding the
purposes behind the act, his determination that the act was an act of terrorism
must be correct.
[52]
Issue
2
Did the
officer analyze and apply the evidence to the definition of terrorism
correctly?
The
applicant’s long-term affiliation with the MQM-A and APMSO is not in dispute in
this judicial review proceeding, and in any event, the officer’s conclusion with
respect to the applicant’s membership in the above organizations was
reasonable. Nor is it disputed that the applicant was not personally involved
in any alleged acts of terrorism. The sole subject of this review is the
evidence surrounding the MQM-A’s involvement, as an organization, in acts of
terrorism.
[53]
The
officer appropriately set out the following stipulative definition of
“terrorism” provided by the Supreme Court of Canada in Suresh above, at
paragraph 98:
… any act intended to cause death or
serious bodily injury to a civilian, or to any other person not taking an
active part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a population,
or to compel a government or an international organization to do or to abstain
from doing any act.
[54]
The
officer had previously provided a list of the evidence of reported acts
attributed to the MQM-A, listed above. Many of those reported acts clearly fall
within the Suresh definition of terrorism because they involved violence
perpetrated by the MQM-A for political purposes and resulted in death or
serious bodily injury. The applicant acknowledges the political purposes of the
MQM-A, but denies that they use violence to promote their goals. The articles
and sources referred to by the officer however, clearly implicate the MQM or
MQM-A, as an organization in killings.
[55]
The
applicant argues that in applying the definition of terrorism, an officer must
explicity: (i) comment on how the acts committed were intended to cause death
or serious bodily injury, (ii) that the acts were committed against civilians,
and (iii) find that the purposes of the acts were to intimidate a population or
to compel a government to do or to abstain from doing any act. I disagree. The
law does not require such precise analysis by an immigration officer.
[56]
In
Ali v. Canada (Minister of Citizenship and Immigration), 2004
FC 1174, [2005] 1 F.C.R. 485, this Court determined that it was a reviewable
error when an officer failed to set out the Suresh definition of
terrorism because it was impossible to discern how the officer defines the
term. Having omitted the proper definition, the Court was also concerned that
the officer failed to “…identify any specific acts carried out by the MQM-A
that would meet the Suresh definition of 'terrorism', or to provide any
analysis of that evidence.” (paragraph 64). Clearly, omitting the proper
definition of terrorism resulted in a higher burden on the officer to analyze
the evidence before her.
[57]
In
Alemu v. Canada (Minister of Citizenship and Immigration), 2004 FC
997, [2004] F.C.J. No. 1210 (QL), this Court again expressed concern that the
definition of terrorism from Suresh was omitted and found the analysis
lacking (paragraphs 33 and 41):
…the decision-maker must specify what
acts the organization engaged in, i.e., those referred to in [s.34(1)](a), (b)
or (c), or any combination thereof. A sweeping statement that merely references
paragraph 34(1)(f), without more, will not suffice.
. . .
A finding of exclusion must provide some
basis for the determination regarding the nature of the group and the
determination regarding an applicant's membership in the group.
[58]
In
Jalil 2006 above, at paragraph 32, the Court held that the
officer has to provide the definition of “terrorism” and explain how the listed
acts met the definition.
[59]
In Naeem v. Canada (Minister
of Citizenship and Immigration), [2007] 4 F.C.R. 658, [2007] F.C.J.
No. 173 (Naeem 2007) at paragraph 46, Madam Justice Dawson referred to Jalil
2006 in stating:
In my view, the officer's decision in the
present case suffers from the same inadequacy. There is no indication as to how
the officer understood and applied the definition of terrorism. The reasons do
not set out the details and circumstances of the acts characterized to be
terrorist acts. Acts such as kidnapping, assault and murder are undoubtedly
criminal, but are not necessarily acts of terrorism. It was incumbent on the
officer to explain why she viewed them to be terrorist acts. Her failure to do
so leads to the conclusion that her reasons do not withstand somewhat probing
scrutiny.
[60]
The
officers in the above cases all made the same fatal error by failing to provide
a definition of terrorism. Once such an omission is made, the officer can only
remedy the situation with an extensive analysis of why he or she believed the
acts to be acts of terrorism, so the reviewing court can determine whether the
officer had the correct understanding of what constitutes “terrorism” despite
omitting the definition.
[61]
When
the correct definition of terrorism is displayed by the decision maker, such an
extensive analysis is not always required. In Jalil 2007 above, a less than
explicit explanation of how the impugned acts constituted terrorism was
accepted by this Court:
33
The respondent submits that it is apparent from the Officer's reasons that the
acts attributed to the MQM-A clearly fall within the Suresh definition of
terrorism as all the cited activities involve violence perpetrated by the MQM-A
for political purposes that caused death or serious bodily injury. Moreover,
the respondent submits that the case at bar is distinguishable from Naeem
and Jalil because in those cases the immigration officers did not
provide any definition of the term "terrorism" or identify how they
considered violent acts attributed to the MQM-A to be terrorist in nature.
34
I agree with the respondent. Unlike in Jalil and Naeem, the
Officer included a definition of terrorism in her decision. While she did not
explicitly explain how she understood and applied this term, she implicitly did
so when she held that "there is an overwhelming evidence and a consensus
among observers in Karachi that some MQM party members have used violent means
to further their political ends" (emphasis added). This seems to me to
indicate that the Officer considered the acts attributed to the MQM-A to more
than criminal acts.
35
While it would be desirable for the Officer to have provided a more detailed
analysis of how the acts attributed to the MQM-A meet the definition of
terrorism provided in Suresh, I am satisfied that her reasons stand up
to a "somewhat probing examination" (Canada (Director of
Investigation and Research) v. Southam, [1997] 1 S.C.R. 748).
[62]
Likewise,
in this case, the officer quoted from the same Amnesty International passage “there
is overwhelming evidence and a consensus among observers in Karachi that some MQM party members
have used violent means to further their political ends”. The officer also
listed and discussed the evidence from numerous sources of the killings
attributed to the MQM-A. In all, the officer dedicated over five pages of the
decision to the definition of terrorism and discussing relevant evidence. I
would be reluctant to make ever increasing demands on the written reasons of
officers.
[63]
The
law does not require that an officer’s decision to surpass such a probing
analysis as the applicant suggests. The concept of deference as respect was enunciated
by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, [2008] S.C.J. No. 9 (QL), and reiterated in Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12 (QL),
at paragraphs 4, 51 and 59. This concept dictates that while the written
reasons of tribunals constitute a primary form of accountability, it should be
recognized that those written reasons are not formal judgments and need not
satisfy meticulous or microscopic legal scrutiny. Dunsmuir at paragraph
47, teaches that as long as a decision can be shown to have “justification,
transparency, and intelligibility” and “falls within a range of possible,
acceptable outcomes,” courts should not interfere.
[64]
The
officer here set out the correct legal definition of terrorism, then cited and
discussed evidence of MQM-A activities that fell within that definition. In my view,
the officer’s application of the definition of terrorism to the listed evidence
was plainly justified, transparent and intelligible. I would not grant judicial
review on this ground.
[65]
Issue
3
Was it reasonable
for the officer to conclude that there were reasonable grounds to believe that
the MQM-A is an organization that has engaged in acts of terrorism?
- Was
it reasonable to reject the applicant’s evidence that violent acts were
only committed by rogue members?
Paragraph
34(1)(f) requires reasonable grounds to believe that the organization has, is
or will engage in acts of terrorism. Thus, it is insufficient for an officer to
find that individuals who happen to be members of an organization have engaged
in such acts. The acts must be acts of the organization.
[66]
The
applicant’s contention is that the MQM-A is a legitimate political party in Pakistan.
Unfortunately, even legitimate political events in Pakistan have
occasionally resulted in violence. However, the applicant alleges that the
official position of the leadership of the MQM is to not condone or encourage
any violence, and that members who engaged in violence were expelled.
[67]
To
this end, the applicant submitted the MQM Manifesto and the Philosophy of
“Realism and Practicalism” by Altaf Hussain to indicate that the MQM does not
believe in or advocate the use of violence. On the contrary, the documents
disclose belief in tolerance, democracy and equal rights.
[68]
This
Court, however, has rejected this very same argument in respect of other MQM-A
members. In Jalil 2007 above at paragraph 38, Mr. Justice Teitlebaum
held that whether an organization engaged in terrorist acts is a factual
determination based on the documentary evidence. It can include not only the
statements of the leadership or members but also their actions.
[69]
The
officer need not provide evidence that the organization officially sanctioned
acts of terrorism. In Daud
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 701, [2008] F.C.J. No. 913 (QL), Madam
Justice Tremblay-Lamer specifically addressed this issue:
[14]
With respect to the related issue of whether the MQM-A, as an organization,
engaged in acts of terrorism, the applicant submits that violence was not part
of MQM-A's objectives. While there is no legal requirement for evidence that
the organization "sanctioned or approved" of the acts forming part of
the s. 34(1)(f) analysis, the officer must assess whether there is enough
evidence to establish that they were indeed sanctioned (Jalil v. Canada
(Minister of Citizenship and Immigration), 2007 FC 568, [2007] F.C.J. No.
763 (QL), at para. 38).
[15]
The applicant submits that the officer could not conclude that MQM-A engaged
in violence because it did not form part of the organization's objectives. I
disagree. This determination is a factual one, based on the documentary
evidence which involves not only the statements of the leader-ship or an
organization's members but also their actions. The analysis does not lend
itself well to a simple tally of members who openly support violent acts;
however, at some point, the magnitude and frequency of violent tactics employed
by the organization in question will make it difficult to classify the
perpetrators as merely rogue members acting outside the will of the group.
(emphasis
added)
[70]
In
the case at bar, the evidence does not suggest that the officer failed to
understand that he was required to have reasonable grounds to believe that the
MQM-A, as an organization, had been involved in acts of terrorism. The
officer’s reasons suggest that he was interested in hearing evidence on the
nature and mandate of the MQM-A. The officer noted the evidence that the MQM-A
condemns any action where the innocent are killed, evidence that the MQM-H
faction was removed or expelled, and evidence that the MQM-A was totally
against religious fanaticism. The officer also directed the applicant to a list
of violent incidents attributed to the MQM or the APMSO and solicited the
applicant’s comments on those documents.
[71]
The
officer balanced the evidence of the MQM-A’s stated purposes and the
applicant’s evidence against the evidence of violence attributable to the MQM-A
and even evidence that MQM-A leadership had endorsed the use of force and
determined that there were reasonable grounds to believe that the MQM-A had
engaged in acts of terrorism. In my view, this was a factual determination that
falls well within the range of possible, acceptable outcomes. I would not grant
judicial review on this ground.
[72]
Issue
3
- Did
the officer disregard the expert transcripts?
The
applicant contends that there is a duty on officers to give special attention
to expert evidence. In Naeem v. Canada (Minister of Citizenship andImmigration), 2008 FC 1375, [2008]
F.C.J. No. 1750 (QL) (Naeem 2008), a similar case
involving the MQM-A, Mr. Justice Gibson allowed judicial review on three
grounds, the final of which was the officer’s failure to understand and discuss
the expert evidence submitted:
[24]
While the foregoing brief analysis is sufficient to justify allowing this
application for judicial review, I will go further and express the Court's view
that, with great respect, the Officer's analysis of Dr. Given's relevant
expertise together with the rejection, without any analysis whatsoever, of Dr.
Rizvi's evidence constituted further reviewable error. A decision such as that
here under review is critical to an individual such as the Applicant in this
matter. Where substantive expert evidence is put forward, by respected counsel,
on behalf of a person such as the Applicant in this matter, it de-serves more
thoughtful and comprehensive analysis if it is to be rejected.
[73]
The
evidence of Dr. Given and Dr. Rizvi was originally given as testimony before
the Refugee Protection Division of the Immigration and Refugee Board in 2006.
The applicant’s reference to the transcripts as “expert evidence” is a stretch.
First, it is unclear whether either Dr. Given or Dr. Rizvi have ever been
qualified as experts in a court of law. Second, neither Dr. Given nor Dr. Rizvi
testified before the decision maker in the hearing in this case. Transcripts of
their testimony and statements were merely submitted along with the applicant’s
other supporting documentation. I will refer to them as expert transcripts.
[74]
Nonetheless,
the officer in the case at bar devoted a considerable portion of his decision
to discussing the expert transcripts. The officer discussed each expert’s transcript
in detail and considered their arguments, but in the end, described why he
preferred the other evidence. The officer acknowledged Dr. Given’s report, and
her comments regarding the reports from Jane’s, Amnesty International and the
IRB. However, the officer noted that:
- Dr.
Given’s report did not discuss other evidence, such as the Asian Survey,
and newspaper articles from the NY Times and Toronto Star;
- Reports
from Jane’s and Amnesty International have been relied upon by the IRB and
Federal Court; and,
- The
assessment of MQM-A was not limited to reports from Jane’s and Amnesty
International. Several articles from distinct sources were used to assess
MQM-A’s activities.
[75]
It
was also clear from the reasons that the officer understood that Dr. Given’s
evidence was not expert evidence on MQM-A, but was evidence impugning some of
the CIC sources, particularly in terms of objectivity, reliability and
trustworthiness.
[76]
Similarly,
the officer considered the evidence of Dr. Rizvi. He acknowledged Dr. Rizvi’s
view that the MQM-A was an organization that did not subscribe to violence, but
could not deny that individual members of MQM had engaged in acts of terrorism.
[77]
In
my view, this was more than enough to alleviate the concerns expressed by Mr. Justice
Gibson in Naeem 2008.
[78]
In
my view, the applicant’s arguments regarding the officer’s assessment of the
expert transcripts amount to a disagreement with the officer’s weighing of the
evidence. This weighing of the evidence is within the officer’s discretion. It
is not the place of courts on judicial review to re-weigh the evidence before
an administrative tribunal. The officer in this case certainly regarded the
significance of the evidence, but explained why it was not enough to sway his
final determination.
[79]
I am
satisfied that this portion of the officer’s decision had the required
justification, transparency and intelligibility and fell well within the range
of possible, acceptable outcomes. It was reasonable for the officer to have
reasonable grounds to believe that MQM-A engaged in terrorism. I would not allow
the judicial review on this ground.
[80]
As a
result of the above findings, the application for judicial review is dismissed.
[81]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[82]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27
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33. The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from omissions
and, unless otherwise provided, include facts for which there are reasonable
grounds to believe that they have occurred, are occurring or may occur.
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 are understood 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 acts referred to in paragraph (a), (b)
or (c).
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33.
Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf
disposition contraire, appréciés sur la base de motifs raisonnables de croire
qu’ils sont survenus, surviennent ou peuvent survenir.
34.(1)
Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
a) être
l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute
institution démocratique, au sens où cette expression s’entend au Canada;
b)
être l’instigateur ou l’auteur d’actes visant au renversement d’un
gouvernement par la force;
c) se livrer
au terrorisme;
d) constituer
un danger pour la sécurité du Canada;
e)
être l’auteur de tout acte de violence susceptible de mettre en danger la vie
ou la sécurité d’autrui au Canada;
f)
être membre d’une organisation dont il y a des motifs raisonnables de croire
qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
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