Date: 20101101
Docket: IMM-4509-09
Citation: 2010 FC 1069
Ottawa, Ontario, November 1, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MUHAMMAD
NAEEM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[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 an
August 28, 2009 decision of an immigration officer (the officer), finding the
applicant to be inadmissible to Canada pursuant to paragraph
34(1)(f) of the Act.
[2]
The
applicant seeks an order from this Court quashing the decision of the officer
and remitting the matter back to Citizenship and Immigration Canada (CIC) for
reconsideration by a different officer.
Background
[3]
The
applicant was born in 1972 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]
The
applicant was a member of the All Pakistan Mohajir Student Organization (APMSO)
from 1988 to 1993. APMSO is the student wing of the MQM of which he was also a
member (April 1988 to March 1999).
[5]
The
applicant was an active member of the APMSO and served as joint secretary from
1988 to 1990. From 1990 to 1993, the applicant attended a different school and
was only a regular member of APMSO and also attended regular Muttahida Quami
Movement Altaf (MQM-A) meetings and rallies.
[6]
The
applicant alleges that MQM split apart in 1992 into the MQM-A faction lead by
Altaf Hussain and the MQM-H faction. After the split, the applicant was only
affiliated with MQM-A.
[7]
Many
publications however including most the respondent relies upon, refer to MQM as
a single organization.
[8]
The
Pakistani government began to take a hard stance against the MQM, causing the
applicant to go into hiding in 1993. From 1993 to 1999, the applicant was in
hiding and did no work for the MQM-A. He states that his purpose during that
time was just to save his life and survive the military crackdown.
[9]
The
applicant came to Canada on April 22, 1999 seeking refugee protection
which was granted February 21, 2001. In his Personal Information Form (PIF),
the applicant claimed his membership in the above organizations.
[10]
The
applicant’s application for permanent residence was approved in principle on
May 3, 2001 although a background check was requested. The applicant was
interviewed by the Canadian Security Intelligence Service (CSIS) on March 12,
2002. Since then, the applicant has been the subject of three separate
inadmissibility findings pursuant to paragraph 34(1)(f) of the Act.
[11]
On
February 25, 2005, the applicant attended an admissibility interview with an
immigration officer. By a decision dated March 7, 2005, the applicant was
advised that he was inadmissible because he had been a member of the APMSO and
MQM-A and that those organizations were involved in acts of terrorism. The applicant
sought judicial review and this Court quashed the decision and remitted the
matter back for determination by another officer (Naeem v. Canada (Minister of
Citizenship and Immigration), [2007] 4 F.C.R. 658, 60 Imm. L.R. (3d)
221, (Naeem 2007)).
[12]
A
second interview was conducted on January 23, 2008 by another office. By a
letter dated May 23, 2008, the applicant was again found inadmissible due to his
membership in the MQM. This Court again quashed the decision and sent the
matter back for redetermination by a different officer (Naeem v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1375, 78 Imm. L.R. (3d) 23, (Naeem
2008)).
[13]
In
May 2009, 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.
[14]
On
June 2, 2009, the applicant attended an interview at Scarborough CIC
accompanied by counsel. At the interview, the applicant stated that the MQM-A
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 Altaf Hussain and
that the MQM mayor of Karachi was well-respected. He
also questioned the fact that the CIC sources were all 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
faction which had been removed from the party or other rogue members.
[15]
Subsequent
to the interview, the applicant’s counsel sent submissions containing 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). The expert transcripts
questioned the validity and reliability of the CIC sources.
The Officer’s Decision
[16]
In
his decision, Officer Sorensen (the officer) determined that the applicant was
a member of the MQM-A and its student wing, APMSO, and that there were
reasonable grounds to believe that MQM-A had engaged in terrorism.
[17]
Membership
was not in dispute. The issue was whether the above organizations had engaged
in acts of terrorism.
[18]
The
officer reviewed the following CIC sources:
1. Immigration and
Refugee Board’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.
2. Jane’s World
Insurgency and Terrorism profile (Jane’s): chronology of major MQM-A events
including:
a.
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”.
b.
1988 – The MQM was believed to have perpetrated the killings of 90 Sindhis in
various incidents. Also in 1988, APMSO activists were reported to have attacked
other students and lecturers under the supervision of five elected city
councillors.
c.
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.
3. New
York Times, 1986 report on widespread violence between the Mohajirs and other
groups in Karachi.
4. An
academic article from the Asian Survey describing the creation of the
MQM as the result of ethnic violence.
5. Reports
of violence in 1995 when the MQM reportedly engaged in terrorist activities by
starting riots and having its members storm anti-MQM neighborhoods. Sources
stated the violence stemmed from the killing of a high ranking MQM member and
the rape of the sister of an MQM member.
a.
The officer included quotes from the following sources: IRB, Toronto Star, New
York Times, Reuters News and Agence France-Presse.
6. 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.
[19]
The
applicant had argued that there was no credible and reliable information to
substantiate that the MQM-A had engaged in acts of terrorism. The applicant had
further submitted that any acts of terrorism attributed to the MQM-A were the
result of rogue members acting independently. After reviewing the applicant’s
documentary evidence, the officer disagreed. The documentary evidence listed
above satisfied the officer that there are reasonable grounds to believe the
MQM-A is an organization that has engaged in acts of terrorism and the APMSO is
a component of the MQM-A. The officer was also satisfied that “…the MQM-A’s
engagement in acts of terrorism is of a level beyond the occasional use of
violence. I am satisfied the MQM-A engaged in acts of terrorism to promote its
political program and assert itself as the dominant organization in Karachi, Pakistan.”
[20]
The
officer then explained why he was not persuaded by the expert transcripts. Dr.
Given’s evidence 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. Given did not discuss any problems with many of the CIC’s sources
and that the CIC relied on many distinct sources for information on MQM and not
just Jane’s and Amnesty International. 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 was satisfied that CIC’s sources, when considered together, were
reliable and valid.
[21]
Dr.
Rizvi’s 2006 statement and testimony was that the MQM did not subscribe to
violence, but he could not deny that individual MQM members had engaged in
violence. The officer concluded that given his review of the above sources and
the expert testimony, he was satisfied that the MQM-A had 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 and that the applicant’s involvement with both organizations
constituted membership. Therefore, the applicant is inadmissible to Canada.
Issues
[23]
The
applicant asks the Court to consider the following three issues:
1. Did the officer err
in law because he failed to consider the proper test for when an organization
engages in terrorism?
2. Did the officer err
in law in his finding that the APMSO and MQM-A have engaged in 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 and
by failing to provide valid reasons for not accepting the expert evidence?
[24]
The
parties agree that the appropriate standard of review for all issues is
reasonableness.
Applicant’s Written Submissions
[25]
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. There was evidence that 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.
[26]
The
applicant submits that 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. The officer failed to understand the difference between acts of
members or activists and acts of the organization itself. Nowhere in his
reasons did he refer to the MQM’s manifesto or political platform or the fact
that the organization rejected violence. There was nothing in the MQM manifesto
or the writings of leader Altaf Hussain to indicate the MQM-A 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, neither Canada nor the U.S. has declared
the MQM-A to be a terrorist group and the MQM-A operates openly in Canada. 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 U.K. where its
head office is located.
[27]
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.
[28]
The
applicant submits that the officer just recited documented incidents of
violence. The officer recited the definition of terrorism and concluded that
his review of documentation from credible sources described that the MQM-A
engaged in acts of terrorism. There must be an evidentiary foundation to
support a finding that an organization was engaged in acts of terrorism.
[29]
An
officer must identify specific acts carried out by the MQM-A that would meet
the definition of terrorism and provide any analysis of that evidence. 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 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. In the case
at bar, the officer failed to discuss why he viewed the violent acts as acts of
terrorism.
[30]
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, not the MQM. Further,
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 SCC 40, [2005] 2
S.C.R. 100. The other CIC sources also fail in this regard as they provide no
mention of the sources relied on.
[31]
The
officer erred further by relying on evidence that post-dates 1993, when the
applicant ceased to be an active member of MQM-A and was forced to go into
hiding.
[32]
The
applicant submits that the officer misconstrued, ignored and failed to provide
reasons for rejecting the expert evidence of Dr. Given and Dr. Rizvi. 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 International despite Dr. Given’s critiques is a reviewable
error.
[33]
The
officer erred 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. 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. In Naeem 2008 above,
it was held that it is a reviewable error to not give substantive expert
evidence a more comprehensive review.
Respondent’s Written Submissions
[34]
The
respondent submits that the officer’s determination was clearly reasonable.
Moreover, the applicant does not provide any convincing evidence that the
officer was incorrect on any question or fact or incorrect in the inferences he
drew. Nor did the officer make any of the errors pointed out by Madam Justice
Dawson and Mr. Justice Gibson in Naeem 2007 and Naeem 2008 above,
respectively.
[35]
The
absence of terrorism in the MQM-A’s manifesto/platform or published documents
does not mean the officer was precluded from determining that it engages in or
has engaged in terrorism. Such writings can be properly discounted when
evidence shows that the organization uses terrorism to achieve its goals.
Contrary to the applicant’s contention that all the terrorist violence is the
work of the rival MQM-H faction, the evidence shows that both the MQM-A and MQM-H
factions use indiscriminate and targeted violence as a tool.
[36]
Likewise,
the legality of MQM-A currently in Canada, the U.S. or the U.K. has no
bearing on the question the officer was required to decide: whether there are
reasonable grounds to believe that the MQM-A engages or has engaged in acts of
terrorism.
[37]
After
correctly defining terrorism, the officer found that those actions committed by
the MQM-A as mentioned in the documentary evidence were terrorist acts. The
officer considered the objections to the evidence raised in the expert
transcripts, but ultimately concluded that the objective documentary evidence
against MQM-A was sufficient, credible and trustworthy. This Court has several
times upheld an officer’s reliance on those same documentary sources to find
that there are reasonable grounds to believe that MQM-A had engaged in
terrorism. This Court has also held in Ali v. Canada (Solicitor
General),
2005 FC 1306, [2005] F.C.J. No. 1590 at paragraph 40:
The MQM's reputation for violence…,
possession of arms …, violent strikes …, mistreatment of dissidents …,
extortion …, and involvement in street battles …, murder … and torture … are
all well established in the documentation.
[38]
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
[39]
Issue
1
Did the officer err in law
because he failed to consider the proper test for when an organization engages
in terrorism?
Paragraph 34(1)(f) of the Act
renders an individual inadmissible if there are reasonable grounds to believe
that the organization he was a member of has, is or will engage in acts
of terrorism. The applicant is correct in pointing out that it is insufficient
for an officer to merely find that individuals or activists who happen to be
members of an organization have engaged in such acts.
[40]
The
applicant further contends that there is essentially a separate and additional
legal test for determining when an organization engages in terrorism. The
applicant says an officer must find that the organization in question commits
acts of terrorism “…either through its manifesto and platform or through
accepting responsibility as an organization for acts of terrorism or through
its encouragement and instigations of such acts” (applicant’s record, paragraph
52). I disagree. The determination is factual in nature. It is true that some
regard must be had for the difference between actions of members acting
independently and actions expressly or implicitly sanctioned by the
organization. There is no authority or basis for the additional legal test the
applicant wishes to impose.
[41]
This
Court has rejected similar arguments in respect of other MQM-A members. In Jalil
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 568, [2007]
F.C.J. No. 763
at paragraph 38 (Jalil 2007), Mr. Justice Teitlebaum, in upholding the
officer’s determination regarding MQM-A, 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.
[42]
There
is no requirement to find 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…
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)
[43]
The
reasons here do 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. It is evident in the
portion below, that the officer understood the important difference.
It is also noted that the MQM-A’s
engagement in acts of terrorism is of a level beyond the occasional use of
violence. I am satisfied that the MQM-A engaged in acts of terrorism to promote
its political program and assert itself as the dominant organization in Karachi, Pakistan.
[44]
Since
organizations can only act through their individual members and supporters, it
is not surprising that the documentary evidence the officer relied on focused
on the actions of individuals.
[45]
The
officer also considered 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.
[46]
I
am satisfied that there was no error of law.
[47]
Issue
2
Did the officer err in law
in his finding that the APMSO and MQM-A have engaged in 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?
I would note that in a March
2005 letter to CIC, the applicant wrote that he “abhorred the violence which
the MQM sometimes resorted to” but that he was in “favour of the aims and goals
of the party.” He now disavows the statement, claiming his lawyer wrote it and
that he signed it (the letter) without reading it.
[48]
Section
34 does not ask whether an individual is a threat to national security.
Inadmissibility under paragraph 34(1)(f) merely asks whether the individual was
a member of an organization which there are reasonable grounds to believe does,
has or will engage in, in this case, acts of terrorism. The implication of such
a broad prohibition is that members of such groups who never themselves took
part in acts of terrorism and individuals who were members at a time when the
organization was peaceful, may nonetheless be lawfully found inadmissible.
[49]
Accordingly,
the applicant’s argument that evidence of MQM-A activities during the period
when he was not a member should not be considered and has no merit. Moreover,
the applicant’s evidence regarding the current standing and legality of MQM-A
both in Pakistan and abroad
is similarly irrelevant to the question which was before the officer.
[50]
The
officer appropriately set out the applicable 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."
[51]
The
officer had previously provided a list of the evidence of reported acts
attributed to the MQM-A, noted above. Some of those reported acts clearly fall
within the Suresh above, 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 does not attack the correctness or
reasonableness of the officer’s conclusion per se, although he remains
adamant that the MQM-A has never engaged in terrorism. Rather, the applicant
first takes the position that the officer made a legal error. Secondly, the
applicant argues that some of the CIC sources relied on by the officer were not
sufficiently reliable. I will deal with each in turn.
[52]
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) find 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. I recently rejected this contention in Mohammad v. Canada (Minister of
Citizenship and Immigration), 2010 FC 51, [2010] F.C.J. No. 50 at paragraph
55.
[53]
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 above, 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” (at paragraph 64). Clearly, omitting the proper
definition of terrorism resulted in a higher burden on the officer to analyze
the evidence before her.
[54]
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 above, was omitted and found the
analysis lacking:
…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.
[55]
In Naeem 2007 above, at paragraph 46, Madam Justice Dawson
stated:
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.
[56]
The
officers in the above cases all made the same fatal error by failing to provide
the correct definition of terrorism or any definition at all. 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.
[57]
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
meticulous explanation of how the impugned acts constituted terrorism was
accepted as reasonable 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. …
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." 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).
(Emphasis added)
[58]
Likewise
in this case, the officer quoted from the same Amnesty International passage
stating: “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”. 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 four pages
of the decision to the definition of terrorism and discussing the relevant
evidence.
[59]
The
law does not require that an officer’s decision to surpass such a probing
analysis, as the applicant suggests. The concept of deference expressed by the
Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190 and reiterated in Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339, at paragraphs 4, 51 and 59, 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 above, 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. 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. I find no reviewable
legal error in the officer’s method.
[60]
It
was open for the applicant to argue that the documentary evidence could not
possibly nourish any reasonable grounds to believe that MQM-A had engaged in
acts of terrorism and that such a finding was unreasonable. He elected not to
submit this. Instead, the applicant casts doubt on the credibility and reliability
of some of the CIC sources, namely, Jane’s and the New York Times report.
However, since the applicant has not challenged the officer’s conclusion on the
whole of the evidence, this argument does not assist him. There is no indication
that the two mentioned CIC sources were of primary importance to the officer’s
conclusion and in all, the officer relied on over ten sources.
[61]
I
will further discuss the credibility and reliability of the CIC sources in my
analysis of the final issue.
[62]
Issue
3
Did the officer err in law
by misunderstanding the expert evidence of Dr. Given and Dr. Rizvi and by
failing to provide valid reasons for not accepting the expert evidence?
The applicant contends that
there is a duty on officers to give special attention to expert transcripts and
that the officer failed in this regard. It is well established law that
administrative decision makers are presumed to have taken all available information
and evidence into account and that the weighing of evidence is entirely within
the decision maker’s discretion (see Velychko v. Canada (Minister of
Citizenship and Immigration) 2010 FC 264 at paragraph 26). However, when
there is important evidence that counters a decision maker’s conclusion and
this evidence is disregarded or ignored, a court may well conclude that the
decision was made without regard for the evidence contrary to paragraph
18.1(4)(d) of the Federal Courts Act and grant judicial review (see 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) at paragraphs 14 to 17).
[63]
In
Naeem
2008
above, 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.
[64]
In
Mohammad above, I held that the transcripts and resumes of these experts
fell short of what is normally considered expert evidence. In the present case,
affidavits containing the evidence of Dr. Given was presented. As well, Dr.
Given has now been found to be an expert in another case in this Court.
[65]
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:
1. Dr. Given’s report did
not discuss other evidence such as the Asian Survey and newspaper
articles from the New York Times and Toronto Star;
2. Reports from Jane’s and
Amnesty International have been relied upon by the IRB and Federal Court; and
3. 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.
[66]
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.
[67]
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.
[68]
The
officer made the following comments with respect to Dr. Rizvi’s evidence at
page 18 of his decision (application record page 25):
.
. . [I]nformation from Jane’s Security World Insurgency and Terrorism and
Amnesty International have been upheld as a reliable source by the Immigration
and Refugee Board and Canadian courts. Furthermore, the Immigration and Refugee
Board of Canada (IRB) prepares objective background information so to assist
IRB members and employees in making well informed decisions.
I
have reviewed the 2006 statement and testimony from Dr. Rizvi, who served as
Director of the Ash Institute at Harvard
University. Dr. Rizvi’s 2006 statement wrote that
the MQM as an organization on whole does not subscribe to violence, but he
could not deny that individual MQM members had engaged in violence. I
acknowledge Dr. Rizvi’s submission that the MQM is not an organization that has
engaged in terrorism.
However,
given my review of several articles from several credible sources, that support
information the MQM-A was involved in violence and terrorism, I am satisfied
that the MQM-A is an organization that has engaged in acts of terrorism; those
articles are listed in this section. Furthermore, I am not satisfied that MQM-A
acts of terrorism can be solely attributable to some individual MQM-A members
acting independently of the MQM-A party.
I
have reviewed the submissions from the applicant’s representative, including
the submissions from Dr. Lisa Given and Dr. Gowher Rizvi who reviewed some of
the documentary evidence used by CIC in the assessment. However, I am satisfied
that the compilation of CIC source information, when considered together, is
reliable and valid.
[69]
In
my view, this was more than enough to alleviate the concerns expressed by Mr. Justice
Gibson in Naeem 2008 above.
[70]
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. Clearly, the officer did not run afoul of the rule in Cepeda-Gutierrez above. I am
satisfied that the officer did have regard for the expert transcripts and
therefore I
would not grant judicial review on this ground.
[71]
In
my view, the officer did not make a reviewable error with respect to the
testimony of Dr. Given and Dr. Rizvi.
[72]
As
a result of my findings, the application for judicial review must be dismissed.
[73]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[74]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
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).
72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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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).
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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