Date: 20070103
Docket: IMM-2736-06
Citation: 2007 FC 6
Ottawa, Ontario, January 3,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MOHAMMAD
ASHRAF SIDDIQUI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review raises an issue of comity or consistency between factual
findings by Immigration and Refugee Board members which are based on exactly
the same evidentiary record. In one case a member held an organization not to
be engaged in terrorism while in the instant case, on the very same evidence,
the member found that the organization had engaged in terrorism.
II. BACKGROUND
[2]
The
Applicant was born in Pakistan to a Mohajir (the
Pakistani word for “refugee”) family. While at college he attended meetings of
a Mohajir student organization, which organization ultimately became the
Mohajir Quomi Movement (MQM).
[3]
The
Applicant contended that the original MQM was dedicated to defending the
Mohajir against discrimination from the Sindh and Punjabi majority in Pakistan.
[4]
In
1990 the MQM divided into the MQM-A (the main group to which the Applicant
continued to belong) and the MQM-H (the dissident offshoot).
[5]
The
Applicant testified that, as a result of a 1992 crackdown by Pakistani
government forces against the MQM and other dissident groups, he was forced to
go into hiding and only worked for the MQM-A in the 1993 election. During that
election he was kidnapped by the MQM-H and held for five days.
[6]
The
MQM-H continued to monitor him and he was forced to pay it 3,000 rupees a
month, presumably to avoid further physical harm. In 1994, after a demand for
even more money, he hid and fled to Canada where he claimed
refugee status.
[7]
On
February 15, 1999, the Applicant was found to be a refugee.
[8]
On
June 18, 2001, he applied for permanent residence, and as a spouse of a
Canadian citizen for exemption from the immigrant visa requirements. During
this process he was interviewed by two officials about his involvement with the
MQM-A.
[9]
One
of the officers wrote a report under s. 34(1) of the Immigration and Refugee
Protection Act (IRPA) alleging that the Applicant was inadmissible on
security grounds for “being a member of an organization that there are
reasonable grounds to believe engages, has engaged or will engage in acts”
which include acts of subversion by force and terrorism.
[10]
The
Applicant’s case was referred to the Immigration and Refugee Board where the
Board found that the Applicant was a member of the MQM-A (a matter readily
admitted by the Applicant) and that there were reasonable grounds to believe
that the MQM-A was engaged in acts of terrorism between 1990 and 1992 (a matter
vigorously challenged by the Applicant).
III. ANALYSIS
[11]
The
finding that the MQM-A was engaged in terrorism, or at least that there were
reasonable grounds to believe so, was based exclusively on documentary
evidence, essentially a package of documents, which included material from the
Research Directorate of the Immigration and Refugee Board.
[12]
In
reaching a determination as to “reasonable grounds to believe” that an organization
engaged in terrorism, Justice Lemieux concluded that the Minister’s burden requires
specificity of who, what, when, where and in what circumstances the subject
organization could be identified as being engaged in terrorism. (Fuentes v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 540 (F.C.T.D.) (QL))
[13]
At
the time of the Applicant’s hearing before the Board, another Board member in a
decision regarding Javed Memon (A5-00256) had examined the same package of
documents as were before the Applicant’s Board and reached the conclusion that
the evidence was insufficient to support a reasonable belief that the MQM-A had
engaged in terrorism between 1990 and 1992.
[14]
The
parties before this Court both confirmed that the packages of documentary
evidence in the two cases were the same, the timeframe the same, and the issue
to be determined was the same.
[15]
In
the Board’s detailed reasoning as to why it accepted the Respondent’s
conclusion of reasonable grounds to believe and in its review of the
documentary evidence, it makes no reference to the reasoning in the Memon
case or explain on what basis it differed from the Memon case.
[16]
While
the parties accept that the standard of review on whether an organization
engaged in certain activities is patent unreasonableness, that standard of
review does not resolve this case (even if the Court accepted this standard).
[17]
There
is no strict legal requirement that the Board members must follow the factual
findings of another member. This is particularly so where there is one of the
“reasonableness” standards in play – reasonable people can reasonably disagree.
[18]
What
undermines the Board’s decision is the failure to address the contradictory
finding in the Memon decision. It may well be that the member disagreed
with the findings in Memon and may have had good sustainable reasons for
so doing. However, the Applicant is entitled, as a matter of fairness and the
rendering of a full decision, to an explanation of why this particular member,
reviewing the same documents on the same issue, could reach a different
conclusion.
[19]
The
failure to explain the basis for the different conclusion undermines the
integrity of Board decisions and gives them an aura of arbitrariness which is
no doubt not intended nor is it acceptable.
[20]
Under
these circumstances, the Board’s decision did not satisfy the “specificity”
test outlined in Fuentes.
[21]
Therefore,
the decision under review is patently unreasonable and breaches the principles
of fairness. It will be quashed and the matter remitted to a different panel of
the Board for a new determination. Given the reasons for granting the judicial
review, there is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application
for judicial review is granted, the Board’s decision is quashed and the matter
is remitted to a different panel of the Board for a new determination.
“Michael
L. Phelan”
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