Kashif Omer v. Canada (Citizenship and Immigration), 2007 FC 478

 

 

 

Date: 20070503

Docket: IMM-5295-06

Citation: 2007 FC 478

Ottawa, Ontario, May 3, 2007

 

PRESENT:     The Honourable Mr. Justice Blais

 

 

BETWEEN:

 

MOHAMMED KASHIF OMER

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 a decision by the Immigration Division of the Immigration and Refugee Board (the Board), rendered on September 14, 2006, where it concluded that the applicant was ineligible as per paragraph 34(1)(f) of the Act and ordered his deportation.

 

BACKGROUND

[2]               Mohammed Kashif Omer (the applicant) is a citizen of Pakistan who came to Canada in December 1998 and was granted refugee status, but was never landed.

 

[3]               While in Pakistan, the applicant was a member of the APMSO (All Pakistan Mohajir Students Organisation) at the Government National College in Karachi from 1987 to 1989, and was the “information secretary” to APMSO from 1989 to 1992.  He then joined and worked for the MQM (Mothaidda Quami Movement), from 1993 until he left Pakistan in 1998. While he initially denied any involvement with the MQM’s political activities in Canada, he eventually acknowledged during the hearing that he was responsible for the “MQM Quebec” branch.

 

[4]               On July 12, 2005, a report under subsection 44(1) of the Act was written, and on July 22, 2005, a referral under subsection 44(2) of the Act for an admissibility hearing was signed. The officer who prepared the report under subsection 44(1) of the Act was of the opinion that the applicant was inadmissible because he knowingly and for a long period of time belonged to an organization that has engaged in terrorism. The admissibility hearing was held on November 15, 2005, January 24, 2006 and April 6, 2006.

 

DECISION UNDER REVIEW

[5]               In a decision rendered on September 14, 2006, the Board concluded as follows:

I conclude that, based on Mr. Omer’s testimony and on the careful analysis of the documentary evidence on the MQM, the MQM-A and the AMPSO, there was a shared common purpose and knowledge on the part of Mr. Omer of the actions of his party which there is reasonable grounds to believe was engaged in acts of terrorism.

 

[6]               The Board thus concluded that paragraph 34(1)(f) applied to the applicant and consequently issued a deportation order.

 

ISSUE FOR CONSIDERATION

[7]               The sole issue for consideration in this judicial review application is the following: Did the Board err by concluding that the MQM was an organization described in paragraph 34(1)(c) of the Act?

 

PERTINENT LEGISLATION

Immigration and Refugee Protection Act, S.C. 2001, c. 27

 

 

STANDARD OF REVIEW

[8]               The choice of the proper standard of review for substantive decisions of the Board is driven mainly by the nature of the decision. On questions of law, the proper standard is that of correctness, on questions of mixed fact and law, reasonableness, and on questions of fact, patent unreasonableness. This approach was confirmed by the Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100.

 

[9]               More specifically, the issue of whether an organization is one described under paragraph 34(1)(c) of the Act has been reviewed by this Court on a standard of reasonableness (Kanendra v. Canada (MCI), 2005 FC 923, [2005] F.C.J. No. 1156 (QL)). The related issue of whether an applicant was a member of an organization referred to in paragraph 34(1)(f) has also been reviewed on a standard of reasonableness, as it is a question of mixed fact and law (Poshteh v. Canada (MCI), 2005 FCA 85, [2005] F.C.J. No. 381 (QL)).

 

ANALYSIS

[10]           Before turning to the specific arguments raised by the applicant, it is important to note that the standard of proof under section 34 is that of “reasonable grounds to believe”, a standard which has been explained as follows by the Supreme Court of Canada in Mugesera, above, at paragraph 114:

... The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less that the standard applicable in civil matters of proof on the balance of probabilities: Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), at p. 445; Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information: Sabour v. Canada (Minister of Citizenship & Immigration) (2000), 9 Imm. L.R. (3d) 61 (F.C.T.D.).

 

[11]           It should also be noted that, in its decision, the Board found the applicant to be complicit in the actions of the MQM. Counsel for each party also made submissions to this Court with regards to the issue of complicity, which it will not be necessary for this Court to address, since the issue of complicity is irrelevant to a determination under paragraph 34(1)(f) of the Act, which refers strictly to the notion of membership in the organization. The question of inadmissibility under paragraph 34(1)(f) should thus be distinguished from inadmissibility as a Convention refugee under section 98 of the Act, which relies on article 1F of the United Nations Convention relating to the Status of Refugees, where the ground for inadmissibility is described as having “committed a crime against peace, a war crime, or a crime against humanity” and, absent direct proof as to the involvement of the person in a specific crime, requires a finding of complicity with the organization who committed such crime.

 

[12]           In Kanendra v. Canada (MCI), 2005 FC 923, [2005] F.C.J. No. 1156 (QL), Justice Simon Noël considered the notion of membership under paragraph 34(1)(f) of the Act, and stated the following:

¶  21      The Applicant submits that the interpretation of "member" in s. 34(1)(f) must be read strictly, so as not to include in its ambit persons who may associate and sympathize with an organization described in s. 34(1)(a), (b) or (c), but who are not themselves a threat to Canada. The Applicant further submits that "member" should be interpreted to mean current and actual or formal membership, including only those who are subject to party discipline and not entitled to act in accordance with independent belief and action.

 

¶ 22      To adopt such an interpretation would, I think, be contrary to the spirit of the legislation as well as to prior jurisprudence. In Suresh v. Canada (Minister of Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 247 (F.C.T.D.) at 259 (para. 22), rev'd in part (on different grounds), 47 Imm. L.R. (2d) 1 (F.C.A.), Justice Teitelbaum stated that, "Membership cannot and should not be narrowly interpreted when it involves the issue of Canada's national security. Membership also does not only refer to persons who have engaged or who might engage in terrorist activities." See also Canada (Minister of Citizenship and Immigration) v. Singh, (1998) 44 Imm. L.R. (2d) 309 at para. 51 et seq. (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Owens, (2000) 9 Imm. L.R. (3d) 101 at paras. 16-18 (F.C.T.D.); Poshteh, supra, at para. 29.

 

¶ 23      Therefore, the term "member" as it is used in s. 34(1)(f) of IRPA should be given a broad interpretation. The Applicant is concerned that those who are not a threat to the security of Canada, despite their former membership in a s. 34(1)(a), (b) or (c) organization, should not be included in the ambit of s. 34(1)(f) and therefore excluded. However, I note that s. 34(2) effectively exempts them from exclusion. This section provides that those who would otherwise be deemed inadmissible because of certain associations or activities not be so deemed where they can satisfy the Minister that they are not a danger to the security of Canada. This interpretation of the statute was also found to be the case in Suresh (S.C.C.), supra. Though that case was determined under s. 19 of the old Immigration Act, the principle remains the same.

 

¶ 24      In order, then, to determine whether an applicant was or is a member of an organization described in ss. 34(1)(a), (b) or (c), an assessment of their participation in the organization must be undertaken. …

 

 

[13]           In the present case, there were reasonable grounds to believe that the applicant was, and indeed still is, a member of the MQM. He joined the student wing of the organization in 1987 and became a full-fledged worker in the MQM in 1993, and continued his participation until his departure for Canada in 1998. No evidence was provided to the effect that he was coerced into joining, or that he was prevented from leaving the organization. In fact, upon arriving in Canada, the applicant joined the Canadian chapter of the organization and is now the head of MQM Quebec. This was clearly recognized by the Board member who wrote:

Therefore, I conclude that he knew what was happening, that he voluntarily joined the AMPSO and then the party, remained a party member and worker until his departure, never tried to dissociate himself from it, and still holds a senior position in it.

 

[14]           Membership in this case has thus been clearly established and the only remaining issue before this Court is whether there are reasonable grounds to believe that the MQM is an organization that engages, has engaged or will engage in terrorism.

 

[15]           Finally, while the Board erred by considering the issue of complicity instead of simple membership, this is not a reviewable error, as it had no effect on the outcome of the decision

(Cable Television Assn. v. American College Sports Co., [1991] 3 F.C. 626, [1991] F.C.J. No. 502 (QL)).

 

Did the Board err by concluding that the MQM was an organization described by paragraph 34(1)(c) of the Act?

 

[16]           In order to determine whether there are reasonable grounds to believe that the MQM is an organization that engages, has engaged or will engage in terrorism, we must first define the term terrorism. This has already been done by the Supreme Court of Canada in Suresh v. Canada (MCI), [2002] 1 S.C.R. 3, where the Court wrote at paragraph 98:

¶ 98      In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism, that "terrorism" in s. 19 of the Act includes 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".  This definition catches the essence of what the world understands by "terrorism". …

 

 

[17]           This is the definition that was applied by the Board, and indeed it is the definition that continues to be used by this Court (Fuentes v. Canada, 2003 FCT 379, [2003] F.C.J. No. 540 (QL), Ali v. Canada, 2004 FC 1174, [2004] F.C.J. No. 1416 (QL)). However, the applicant argues that the Board erred in its interpretation of the definition provided by the Supreme Court of Canada, when it wrote:

It is perfectly clear that intimidation, when supported by violence, torture, assassinations, the use of secret detention centres and bomb attacks, figures among the acts that fall within the scope of the definition of terrorism when they blindly target the entire population or even mere political opponents who are not personally involved in the hostilities. [my emphasis]

 

 

[18]           The applicant argues that intimidation that targets political opponents is not violence to intimidate a population or to compel a government or organization, as per the definition of terrorism in Suresh, above. The applicant further submits that terrorism does not include settlements of accounts within an organization, or between organizations, however despicable and politically incorrect this may be. Furthermore, the “civilians” or the “persons not taking an active part in the hostilities in a situation of harmed conflicts”, in the definition of terrorism provided by Suresh, above, are meant to refer to random targets, not an identifiable opposition.

 

[19]           The respondent for his part submits that the applicant’s contention does not resist a careful reading of the Board’s reasons in light of the definition of terrorism as provided in Suresh, above. Indeed, the Board refers to “entire population or even mere political opponents who are not personally involved in the hostilities”, who are clearly blind targets of the acts committed by the MQM. This must also be read in contrast with the Board’s rejection of violence in the context of urban guerrillas, “where people on both sides participated directly in the hostilities”, as evidence of terrorism.

 

[20]           Since “political opponents” could theoretically be anyone in Pakistan who supports a political organization other than the MQM, and thus a very large segment of the population, I believe that such opponents who are not personally involved in the hostilities would be considered civilians or other persons not taking an active part in the hostilities, as per the Suresh definition of terrorism. Therefore, I agree with the respondent that the definition adopted by the Board was proper and does not justify the intervention of this Court.

 

[21]           Turning now to the finding of the Board that there are reasonable grounds to believe that the MQM is an organization that engages, has engaged or will engage in terrorism, I reproduce the following excerpt from the Board’s reasons:

I agree with Me Bertrand’s assertion that, when we look at the reported acts of violence, we must look at them in the context of the climate of political violence that has characterized Pakistan for decades. However, we must also remember that this violence reached endemic proportions in the years during which Mr. Omer was working for the MQM-A.

 

The direct actions against identifiable opposition members would not be associated with terrorism in cases of [Translation] “urban guerrilla” battles where people from both sides participated directly in the hostilities. Of the 13 elements – excerpts from the documentary evidence – listed by Mr. Beaupré in the section describing the nature of the group (page 2 of his submissions), number 5 – abduction and counter-abduction of P.P.P. and Mohajir Quaumi Movement student’s activist – and 7 – people were killed almost daily in fighting among factions of the MQM, and between the MQM and sindhi nationalists – can therefore be set aside. However, many of the actions (listed by Mr. Beaupré in his submissions or mentioned in the documentary evidence) in which the MQM, the MQM-A or some of its members were allegedly involved could be considered terrorist acts. It is perfectly clear that intimidation, when supported by violence, torture, assassinations, the use of secret detention centres and bomb attacks, figures among the acts that fall within the scope of the definition of terrorism when they blindly target the entire population or even mere political opponents who are not personally involved in the hostilities.

 

Is the documentary evidence that reports these events so lacking in credibility, as Mr. Omer claims, that all of it must be dismissed? I do not think so. Although the organizations that reported the events use terms such as “imputed”, “alleged” or “are suspected of …”, the number of witnesses, some corroboration, and the consistency of the information from these various sources are sufficient to conclude that this specific exhibits are credible and trustworthy. We are talking about intimidation, often accompanied by violence (M-2, p. 38; M-3, p. 1596; M-5, p. 3; M-5, p. 17; M-8, para. 76, M-12, p. 1), rapes (M-2, p. 38), torture, assassinations, the use of secret detention centres (M-2, pp. 37, 38, 39 and 40; M-3, pp. 1588 and 1593; M-4, p. 5, M-5, p. 2; M-8, paras. 76, 78, 81 and 82; M-10, p. 1085; M-11, pp. 2 and 3), bomb attacks (M-10, p. 1088), and terrorist acts in general (M-9, p. 1; M-10; M-12, p. 1). In short, I find that terrorist acts as defined in Suresh can be attributed to the MQM and the MQM-A during all of the years in question in this case, so these organizations were engaged in terrorism.

 

[22]           The applicant argues that the Board’s reasons do not disclose reasonable grounds to believe that the MQM is a terrorist organization. At most, the evidence shows that some rogue members of the organization are alleged to have been involved in violence, and that, at times, this was not condemned by the organization.

 

[23]           The applicant also maintains that there was no reasonable ground for finding that the MQM is a terrorist organization, as there was no objective basis for the belief which was based on compelling and credible information. While the Minister’s evidence, generally speaking, comes from credible informers such as Amnesty International, the US Country Report and the UN Reporter, the applicant maintains that the source of their information lacks credibility, which is why they report that the violence described is ‘imputed’ to the MQM or is ‘alleged’ to have been committed by the MQM. The applicant argues that Pakistan is one of the most corrupt countries in the world, one where disinformation is rampant, and that since the authorities often lie to achieve their purpose, they cannot be trusted as a source for this information.

 

[24]           It is important to make clear at this point that it is not the place of this Court to determine whether the MQM is a terrorist organization, nor is this Court being asked to state whether it would have found the MQM to be an organization that engages, has engaged or will engage in terrorism. Rather, this Court must determine whether the conclusion of the Board to the effect that there were reasonable grounds to believe that the MQM is an organization that engages, has engaged or will engage in terrorism, is in itself reasonable.

 

[25]           This is not the first time that this question has been the subject of judicial review. In Ali v. Canada (MCI), 2004 FC 1174, [2004] F.C.J. No. 1416 (QL), Justice Anne L. Mactavish concluded the following at paragraphs 64 to 68:

¶ 64      There are additional problems with the officer's decision. The immigration officer's reasons make specific reference to Mr. Ali's admission that he was, and still is, a member of the MQM-A. As such, there is a clearly articulated explanation for the officer's finding of membership in the organization. However, I am concerned about the failure of the officer 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. There is also a question as to the sufficiency of the evidence supporting the officer's conclusion.

 

[…]

 

¶ 67      As Justice Layden-Stevenson observed in Alemu, at paragraph 41:

An exclusion finding is extremely significant to an applicant. Caution must be exercised to ensure such findings are properly made. The court will not substitute its opinion for that of the decision-maker when the analysis and basis for the decision are reasonable. That is not the situation here. A finding of exclusion must provide some basis for the determination regarding the nature of the group... . Failure [to do so] ... yields a result that falls [far] short of being reasonable.

¶ 68      In this case, the officer's reasons do not provide an adequate basis for her finding that there are reasonable grounds to believe that the MQM-A is a group engaged in terrorist activities. In particular, there is no analysis of the IRB report, and no identification of which activities on the part of the MQM-A the officer considers to be terrorist in nature. In my view, in light of the seriousness of the finding in issue and its consequences for Mr. Ali, it was incumbent on the officer to provide some explanation for her finding that there are reasonable grounds to believe that the MQM-A is a terrorist organization. Her failure to do so constitutes a reviewable error.

 

[26]           In Khan v. Canada (MCI), 2005 FC 1053, [2005] F.C.J. No. 1303 (QL), a finding that the MQM was an organization that engages, has engaged or will engage in terrorism, based essentially on a report by Amnesty International, was upheld by Justice Douglas Campbell, who wrote at paragraphs 13 to 15:

¶ 13      As a central objection, Counsel for the Applicant attacks the sufficiency of the Amnesty International Report relied on by the Member, because it was not an independent assessment of MQM activities. On this point, the Applicant argues as follows:

 

71.		All of these "reports" and "allegations" are heresay [sic], and not credible. In fact, Amnesty International questioned the credibility of their very own report stating: "Amnesty International has not been able to independently verify reports of torture by the MQM".
72.		In other words, this single document to the issue before the Member is very questionable on credibility.

       [Original underlining]

       (AR, pp. 54-55, paras. 71-72)

 

¶ 14      With respect to this argument, I find that a complete reading of the Report (AR, p.37) does not bear out the credibility argument advanced. While the Report does state that Amnesty International was unable to independently verify the reports of torture, it goes on to state the information was gathered a variety of sources being members of other political parties, the media, the army, and "observers". I find no error in the Member's willingness to give the Report weight for the stated reason that the "reappearance of similar information and incidents in diverse publications contribute to the trustworthiness of the documents" (AR, p. 19, para. 31).

 

¶ 15      As a result, I have no hesitation in agreeing with Counsel for the Respondent's argument that the evidence contained in Tab 5, while it might be less than proof on a balance of probabilities, is more than a flimsy suspicion. As a result, I find that the evidence in Tab 5 meets the standard of "reasonable grounds to believe" as that term is used in s.34(1)(f). Thus, the answer to this question is "yes".

 

[27]    The present case is clearly much closer to the situation in Khan, above, than in Ali, above, as reasons were provided by the Board to support its conclusion, which disclose some analysis and a clear identification of which activities on the part of the MQM the Board considers to be terrorist in nature. The Board also addressed the issue of the credibility of the evidence, finding that “the number of witnesses, some corroboration, and the consistency of the information from these various sources are sufficient to conclude that this [sic] specific exhibits are credible and trustworthy”.

 

[28]    Finally, in terms of the assessment of the documentary evidence and of the credibility of the applicant, the findings of the Board are owed great deference and the Court will not re-weigh the evidence that was before the Board. As stated by the Supreme Court of Canada in Mugesera, above, at paragraph 38:

… The IAD is entitled to base its decision on evidence adduced in the proceedings which it considers credible and trustworthy in the circumstances: s. 69.4(3) of the Immigration Act. Its findings are entitled to great deference by the reviewing court. Indeed, the FCA itself has held that the standard of review as regards issues of credibility and relevance of evidence is patent unreasonableness: Aguebor v. Minister of Employment & Immigration (1993), 160 N.R. 315, at para. 4.

 

[29]    In Fuentes, above, Justice François Lemieux stated at paragraph 84 :

¶ 84      It is trite law the Adjudicator can prefer documentary evidence over the testimony of a claimant but, the Adjudicator was bound to state in clear and unmistakable terms why it preferred the documentary evidence over the applicant's testimony (see Okyere-Akosah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 411 (F.C.A.). This the Adjudicator did not do.

 

[30]    While the applicant has maintained that the MQM is not a terrorist organization and that it was only rogue elements that engaged in such activities, the Board preferred the documentary evidence to the testimony of the applicant. Contrary to the situation in Fuentes, above, in the present case, the Board’s preference for the documentary evidence was explained by its finding that the applicant lacked credibility. The Board member wrote:

Mr. Omer’s testimony, heard over several hours, lacks credibility. When he was questioned about the actions of his party or certain of its members and confronted with the documentary evidence reporting these actions, Mr. Omer was vague, tried to evade the questions, and initially denied any knowledge of the existence of such allegations, but a little later, reluctantly admitted that he [Translation] “might” have heard about them, the he [Translation] had “possibly” read about them in the newspapers … I think Mr. Omer knew what was happening in Pakistan in general and in his party in particular. …

…

Furthermore, Mr. Omer’s reasons for trying to hide that, in Canada, he is responsible (Unit in charge / M-17) for the Montreal section of the MQM/Canada lead me to believe that he knew that his party was committing many violent acts.

 

[31]           Having reviewed the Board’s reasons in light of the evidence presented, I find that the conclusion of the Board to the effect that there are reasonable grounds to believe that the MQM is an organization that engages, has engaged or will engage in terrorism, is reasonable.  While the Board did not provide a detailed analysis of the documents on which it relied, as was done with the Amnesty International report in Khan, above, it identified a series of acts attributed to the MQM which it considered to be evidence of terrorist activities, and noted precisely where in the documentation submitted this evidence could be found. The Board not only relied on a number of different documents, but also explained why it found the information to be credible. As in Khan, above, while the evidence relied on by the Board might be less than proof on a balance of probabilities, it is more than a “flimsy suspicion” and does appear to be based on compelling and credible information. As such, the decision of the Board is reasonable and the Court will not interfere with it.

 

[32]    For the above reasons, this application for judicial review is denied.

 

[33]    Neither counsel suggested any question for certification.

 

 

 

 

 

JUDGMENT

 

1.                  The application is denied;

2.                  No question for certification.

 

 

“Pierre Blais”

FEDERAL COURT

 

NAMES OF COUSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                           IMM-5295-06

 

STYLE OF CAUSE:                           MOHAMMED KASHIF OMER v.

                                                            THE MINISTER OF CITIZENSHIP AND                                                                                         IMMIGRATION

 

 

PLACE OF HEARING:                     Montreal

 

DATE OF HEARING:                       April 18, 2007

 

REASONS FOR:                               THE HONOURABLE MR. JUSTICE BLAIS

 

DATED:                                              May 3, 2007

 

 

APPEARANCES:

 

Mr. Jean-François Bertrand                  FOR APPLICANT

 

Ms. Lisa Maziade                                 FOR RESPONDENT

 

 

 

SOLICITORS OF RECORD:

 

Mr. Jean-François Bertrand                 

Montreal, Quebec                                FOR APPLICANT

 

                       

JOHN H. SIMS, Q.C.

Montreal, Quebec                                FOR RESPONDENT