Date: 20071015
Docket: IMM-1565-07
Citation: 2007 FC 1049
Ottawa, Ontario, October 15,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
MOHAMMAD
QURESHI
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Minister seeks judicial review of a decision by the Immigration Appeal Division
(IAD) that Mr. Qureshi was not inadmissible under s. 34(1)(f) of the Immigration
and Refugee Protection Act (Act). The IAD had upheld a similar finding by
the Immigration Division (ID).
[2]
The
Minister argues that the IAD erred (a) because it applied the incorrect test
regarding “membership” by adopting a subjective component and (b) because the
IAD acted as if it was dealing with a judicial review and not a de novo
hearing.
II. BACKGROUND
[3]
The
Respondent is a citizen of Pakistan who arrived in Canada in 1988. His
refugee claim was denied in 1999 and since then the Minister has been seeking
to have him declared inadmissible because he was a member of a terrorist group,
the Mohajir Quomi Movement (MQM).
[4]
The
IAD held that the Minister had not provided sufficient credible and trustworthy
evidence so as to conclude that there were reasonable grounds to believe that
the Respondent was or is a member of the MQM. The matter of whether the MQM was
a terrorist organization was not in issue.
[5]
The
source of considerable concern to the Minister is the admission on the
Respondent’s PIF and before the Refugee Protection Division that he was a
member of the MQM. The IAD accepted the Respondent’s explanation that by the
term “member”, he meant a “supporter”.
III. ANALYSIS
A. Standard
of Review
[6]
The
decision dealt with the interpretation and application of the term “member”
which has been held to be reviewable on a standard of reasonableness. (Poshteh
v. Canada (Minister of
Citizenship and Immigration) (2005), 252 D.L.R. (4th) 316)
The decision also involves a factual determination, most particularly one of
credibility, which is reviewable on a standard of patent unreasonableness. (Adams
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 386) Lastly, the determination
of whether the IAD performed a de novo review or not is one to be
determined on the basis of correctness.
B. Membership
[7]
Section
34(1)(f) of the Act is broadly worded. The whole provision of s. 34 is to
accord the Minister considerable power to grant relief from the very broad net
cast by s. 34(1).
|
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).
(2) The matters referred to in subsection (1) do not constitute
inadmissibility in respect of a permanent resident or a foreign national who
satisfies the Minister that their presence in Canada would not be detrimental to the
national interest.
|
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).
(2) Ces faits n’emportent pas interdiction de territoire
pour le résident permanent ou l’étranger qui convainc le ministre que sa
présence au Canada ne serait nullement préjudiciable à l’intérêt national.
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[8]
The
case law is clear that the determination of membership is an objective test. There
was evidence before the IAD on which a reasonable person could conclude that
the Respondent was a member. However, there was evidence upon which a
reasonable person could reach a different conclusion. It is not the Court’s function
to re-weigh the evidence. (Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL))
[9]
The
IAD’s reference to the Respondent’s subjective belief of his “membership/support”
did not establish that the IAD had made its determination of membership on a
subjective basis. The Minister was attempting to rely upon the admission in the
PIF as part of its proof of the Respondent’s membership. The Respondent merely
put forward his explanation of what he meant by that term. The IAD accepted the
explanation – a matter of credibility.
[10]
Therefore,
I can find no error in the IAD’s approach to the issue of membership.
C. De Novo
Hearing
[11]
The
Minister attempted to show that the IAD did not approach this case as a de
novo review because the Member referred to the absence of new facts and
therefore the absence of any reason to alter the ID’s finding.
[12]
A
review of the transcript shows that the Member understood that he was
conducting a de novo review. I interpret the reference to “no new
evidence” as simply the Member’s way of concluding that he adopted the ID’s
view of the evidence.
[13]
The
Minister has not established that the IAD failed to conduct a de novo
review of the ID’s decision.
IV. CONCLUSION
[14]
Therefore,
for these reasons, this application for judicial review is dismissed. This case
turned on the specific facts of the matter and therefore no question will be
certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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