Date: 20081216
Docket: IMM-2472-08
Citation: 2008 FC 1375
BETWEEN:
MUHAMMAD
NAEEM
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON D. J.
INTRODUCTION
[1]
These
reasons follow the hearing at Toronto on the 26th of November, 2008,
of an application for judicial review of a decision of an officer (the
“Officer”) in the Respondent’s Ministry, dated the 23rd of May 2008,
and communicated to the Applicant on or about the 27th of May, 2008,
whereby the Officer found the Applicant inadmissible to Canada pursuant to
paragraph 34(1)(f) of the Immigration and Refugee Protection Act
(the “Act”) and, as a consequence, refused the Applicant’s application
for permanent residence in Canada.
BACKGROUND
[2]
The
decision here under review represents the second such decision in respect of
the Applicant. Judicial review in this Court of the first such decision was
sought and, in the result, that decision was set aside. The Applicant again
applied for permanent residence in Canada with the decision now
before the Court being the result.
[3]
The
background facts are essentially not in dispute. The following summary of
those facts relies heavily on the opening paragraphs of the first decision of
this Court in the saga of the Applicant’s efforts to achieve status in Canada.
[4]
The
Applicant is a citizen of Pakistan who came to Canada in 1999 and made a
refugee claim based upon his membership and activities in the Mohajir Quami
Movement - Altaf Faction (the “MQM-A”) and its student wing, the All Pakistan
Mohajir Student Organization (the “APMSO”). He was found to be a Convention
refugee in February of 2001. Immediately thereafter he applied for permanent
residence in Canada.
[5]
In
February of 2005, the Applicant was interviewed by the officer who made the
first decision for the purpose of determining whether he was inadmissible to
Canada under paragraph 34(1)(f) of the Act as a result of his admitted
membership in the MQM-A and its student wing, the APMSO.
[6]
As
earlier indicated, a first decision finding the Applicant to be inadmissible on
security grounds under paragraph 34(1)(f) of the Act followed. It was
judicially reviewed and the decision was set aside.
[7]
The
Applicant again applied for landing.
THE LEGISLATIVE SCHEME
[8]
Section
33 and the opening words of subsection 34(1) and paragraphs (a), (b), (c) and
(f) of that subsection of the Act read as follows:
|
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;
…
(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).
|
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;
…
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).
|
THE DECISION UNDER
REVIEW
[9]
The
Officer would appear, from her reasons, to have proceeded to the second
decision, which is now before the Court, in three stages. The Officer first
reviewed the material with respect to the Applicant and his involvement with
the Mohajir Quami Movement, the MQM-A and the APMSO, background material on the
MQM and the MQM-A and, instances of violent activity attributed to members of
the MQM and the MQM-A while the Applicant was a member, and concluded:
I am of the opinion
that the activities listed above provide reasonable grounds to believe
that the ... [MQM] and the subsequent faction ... [MQM-A] is an organization
that engages or has engaged in terrorism. The MQM is characterized as a
violent organization in the following documentation. A profile of the MQM
prepared by York University’s Center for International and Security Studies states: “The
MQM’s activities within Pakistan are inevitably connected with violence.
Every strike that is called comes with the price of violence, with either
fatalities and injuries, or destruction of property. The MQM has
systematically denied any involvement in criminal acts, continuously accusing
rival factions or the government of fabricating lies and of framing the MQM.
While there may be some basis to some of these allegations, the evidence
against the MQM is overwhelming. There are no analyses that argue that the MQM
has not been engaged in acts of terrorism within Karachi and Hyderabad.
[emphasis added]
[10]
The
Applicant and his counsel were interviewed on the 23 of January, 2008,
concerning the Applicant’s involvement with the MQM and the Officer’s concern
that there were reasonable grounds to believe that the MQM was an organization
that engages or has engaged in acts of terrorism. Documentation on which the
Officer relied was provided to the Applicant for information and an opportunity
was provided to the Applicant, following the interview, to respond to the material
and to the interview.
[11]
Through
counsel, the Applicant availed of the opportunity provided.
[12]
In
the second stage of her reasons, the Officer reviewed the Applicant’s response
at some length with particular emphasis on an opinion of Dr. Lisa Given to
which, she noted, Applicant’s counsel gave “considerable weight”.
[13]
The
Officer essentially reaffirmed her first stage conclusion. She wrote:
Based on the totality of the information
at my disposal, I have concluded that the Applicant, Mohammad Naeem, is an inadmissible
person described under section 34(1)(f) of the Immigration and [Refugee]
Protection Act, for being a member of an organization that there are reasonable
grounds to believe engages, has engaged or will engage in acts of terrorism,
and is therefore inadmissible to Canada.
[14]
The
Applicant, once again on invitation and through counsel, provided further
additional documentation and submissions with particular emphasis on material
from “... a second expert witness, Dr. Gowher Rizvi from Harvard University
who had previously testified at a refugee claim hearing in front of the IRB.”
The Officer noted:
...
Dr. Rizvi claimed that violence was
widespread in Pakistan and that business people
settle disputes in a violent manner.
He claimed that the police and media are
corrupt and not to be believed. He also claimed that Amnesty International [a
source on which the Officer relied] was not academically verifiable. He did
admit in his testimony [presumably before the IRB] that there may have been
members of the MQM that practiced violent means but that it was not a policy of
the party.
[15]
Without
further analysis, the Officer concluded:
I have reviewed these
submissions, as well as previous documentation in its entirety, and remain of
the opinion that there is reasonable grounds to believe that the MQM is a
terrorist organization and that Mr. Naeem, as a member of the MQM is
inadmissible pursuant to A34(1)(f) of IRPA
[16]
The
decision now under review followed.
THE ISSUES
[17]
Counsel
for the applicant, in addition to the issue of standard of review, identifies
the following issues in the Applicant’s Memorandum of Fact and Law:
-
did
the Officer err in law because she failed to consider the proper test for when
an organization qua organization engages in acts of terrorism?
-
did
the Officer err in law in her finding that MQM-A has engaged in acts of
terrorism because she failed to explain how she understood and applied the
definition of “terrorism” and failed to provide a proper analysis and reasons
for her conclusion?
-
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?
[18]
Counsel
for the Respondent simply urges that the Applicant has failed to identify any
reviewable error in the Officer’s assessment of the Applicant’s admissibility.
ANALYSIS
a) Standard
of Review
[19]
Counsel
for the Applicant and for the Respondent did not differ in their submissions
that the appropriate standard of review, since Dunsmuir v. New
Brunswick, is
reasonableness. I agree.
[20]
In
Afridi v. Canada (Minister of Public Safety and Emergency Awareness), Justice
Russell, in support of a conclusion that the appropriate standard of review in a
judicial review of a decision under subsection 34(2) of the Act is
reasonableness, wrote at paragraphs 20 to 22 of his reasons:
In Dunsmuir v. New
Brunswick, ... , the Supreme Court of Canada recognized that,
although the reasonableness simpliciter and patent unreasonableness
standards are theoretically different, “the analytical problems that arise in
trying to apply the different standards undercut any conceptual usefulness
created by the inherently greater flexibility of having multiple standards of review”
(Dunsmuir at para. 44). Consequently, the Supreme Court of Canada held
that the two reasonableness standards should be collapsed into a single form of
“reasonableness” review.
The Court in Dunsmuir
also held that the standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to the particular
question before the court is well-settled by past jurisprudence, a reviewing court
may adopt that standard. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
Naeem v. Canada (Minister
of Citizenship and Immigration), ... at paragraphs 39-40 holds that the
standard of review of an application under s. 34 of the Act is reasonableness simpliciter.
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to this issue to be reasonableness. When reviewing a decision on
the standard of reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” ... . Put another way, the Court should only intervene if the
Decision is unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
[citations
omitted]
b) Failure
To Consider The Proper Test For When An Organization Qua Organization Engages
In Acts Of Terrorism
[21]
In Alemu v. Canada (Minister of Citizenship and Immigration), Justice Layden-Stevenson wrote at paragraphs 32 of her reasons and
following:
For paragraph 34(1)(c)
to apply, the decision-maker would have to have regard to the definition of
terrorism in Suresh v. Canada (Minister of
Citizenship and Immigration) ... in relation to the actions of the
group. Mr. Justice Lemieux, in Fuentes v. Canada (Minister
of Citizenship and Immigration), ... determined that departure from the
Suresh definition of terrorism by an adjudicator constituted reviewable
error. Mr. Justice Mosley reached a similar result in Zarrin v. Canada (Minister
of Citizenship and Immigration) ... . Further guidance in examining the
meaning of “engaging in terrorism” is now available by reference to the
statutory definition of “terrorism” provided in the Anti-Terrorism Act
... .
Paragraph 34(1)(f)
makes clear reference to paragraphs (a), (b) and (c) of the subsection.
Because the word “or” is used, any one of (a), (b) or (c) will suffice to
satisfy the requirement. However, the decision-maker must specify what acts the
organization engaged in, i.e. those referred to in (a), (b) or (c) or any
combination thereof. A sweeping statement that merely references paragraph
34(1)(f), without more, will not suffice. It is no answer to say that in Gariev,
... the court concluded that the applicant was inadmissible under paragraph
34(1)(f). In that case, the submission was that it had to be shown that the
applicant was a direct member of the organization in question. Moreover, the
parties accepted that the organization was one that engaged or has engaged in
acts of espionage against democratic governments ... .
...
... I conclude that a
generalized reference to paragraph 34(1)(f) of IRPA without some further
specificity linking and identifying the acts of the organization to one
or more of paragraphs (a), (b) or (c) of subsection 34(1) is patently
unreasonable and constitutes grounds for review.
[citations
and some text omitted; emphasis added]
[22]
I reach the same conclusion on the facts of this matter.
The Officer simply failed to link her conclusion regarding the MQM-A and its
student wing to “... one or more of paragraphs (a), (b) or (c) of subsection
34(1)”.
c) Failure
By The Officer To Explain How She Understood And Applied The Definition Of
“Terrorism” And Failed To Provide A Proper Analysis And Reasons For Her
Conclusion
[23]
I am satisfied the quotation above is entirely responsive
to this issue question and demonstrates reviewable error in this regard.
d) Failure On The Part
Of The Officer To Demonstrate That She Understood The Expert Evidence Of Dr.
Given And Dr. Rizvi and Failure To Provide Valid Reasons For Not Accepting The
Evidence Of Either Or Both Of Them
[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 deserves more thoughtful and comprehensive analysis if it is to
be rejected.
CONCLUSION
AND CERTIFICATION OF A QUESTION
[25]
For all of the foregoing reasons, this application for
judicial review will be allowed and the Applicant’s application for landing
will be referred back to an appropriate authority, not the Immigration Officer
whose decision is here at issue, for redetermination.
[26]
At the close of the hearing of this matter, I advised
counsel that my decision herein would be reserved. Counsel requested an
opportunity to review my reasons once they were issued and to make submissions
on certification of a question. I agreed to counsel’s request. These Reasons
will be circulated and counsel will have four weeks from the date of such
circulation to agree on a schedule for submissions on certification and to
provide submissions and any appropriate reply submissions, within that time
limitation. Only thereafter, will an order implementing these reasons issue.
“Frederick E. Gibson”
Ottawa,
Ontario
December
16, 2008
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