Date: 20080623
Docket: IMM-4056-07
Citation: 2008 FC 758
Ottawa, Ontario, June 23, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
IMAD
UDDIN JILANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of Immigration Division of
the Immigration and Refugee Board (the Board), pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), dated
September 26, 2007. The Board found that the applicant, Mr. Imad Uddin Jilani,
was inadmissible pursuant to paragraph 34(1)(f) of the Act and issued a
removal order.
ISSUES
[2]
The
applicant raises three issues in the present case:
a) Did the Board
consider the wrong test to determine whether MQM is a terrorist organization?
b) Did the Board
err by drawing unsubstantiated inferences without regard to the evidence?
c) Did the Board
err in making a negative credibility finding against the applicant?
[3]
For
the following reasons, the application for judicial review shall be dismissed.
FACTUAL BACKGROUND
[4]
The
applicant is a citizen of Pakistan, born October 23, 1964.
He was a member of MQM, an organization in Pakistan. He joined
MQM in 1984 and remained an active member until 2000, at which time he left for
the United
States
where he remained for three years. He came to Canada on April 10,
2003.
[5]
The
applicant indicated that he joined MQM because he wanted to do social work, and
through his involvement, he believed he could help the poor. He testified at
the admissibility hearing that he occupied the position of “sector in charge”. In
this capacity, he was responsible for the Nazimabad sector, which is comprised
of 13 “units in charge”. Above the sector in charge, in the hierarchical
structure of MQM, is the “zonal in charge”, and above that is a central
committee.
DECISION UNDER REVIEW
[6]
The
Board rendered a decision regarding the admissibility of the applicant pursuant
to paragraph 34(1)(f) and 35(1)(a) of the Act. The Board decided that the
applicant is inadmissible pursuant to paragraph 34(1)(f) on the ground that he
was a member of an organization that there are reasonable grounds to believe
has engaged in acts of terrorism, pursuant to paragraph 34(1)(c) and (f). The
Board concluded that the applicant was not inadmissible pursuant to paragraph
35(1)(a).
[7]
In
making the determination that the applicant is inadmissible pursuant to
paragraphs 34(1)(c) and (f) of the Act, the Board proceeded in two steps. First,
the Board found that the applicant was a member of MQM:
a) The Board
noted that the applicant testified that he joined MQM in 1984 and that he
remained an active member until 2000. He was personally acquainted with the leader,
Altaf Hussein.
b) The Board mentioned
that the applicant described the hierarchical structure of MQM, as well as his
responsibilities in the position of “sector in charge”.
c) The Board
concluded that the applicant was a member on the basis of his own testimony. It
noted the submission of counsel that the applicant was a member of MQMA, not
MQMH, which he argued did not engage in violent activity. The Board referred to
documentary evidence stating that MQM is a broad and multifaceted organization,
but nonetheless concluded that the political party is not separate from the
rest of the organization.
[8]
The
Board concluded that there existed reasonable grounds to believe that MQM is an
organization that engages, has engaged or will engage in terrorist activities:
a) It began
its analysis by citing the definition of terrorism adopted by the Supreme Court
of Canada in Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, at paragraph 98, [2002] 1
S.C.R. 3:
… [An] 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. …
b) It proceeded
to review the documentary evidence which it found to be replete with
information regarding acts of terrorism and violence by MQM. The Board referred
to a report from the Centre for International and Security Studies at York University, a report by
UNHCR, a document published by the Research Directorate of the Board, and a
document from Amnesty International. The evidence reported incidents of
murders, abductions, mutilations, revenge killings and torture. The Board
concluded that there was overwhelming evidence and a consensus among observers
that some MQM members used violent means.
c) It considered
the applicant’s submission that he was a member of MQMA, not MQMH, the militant
faction. It also considered the evidence of the applicant’s expert witnesses. First,
Dr. Robert Rizvi, a professor at Harvard University, who
testified that violence within MQM was not sanctioned by party leadership;
then, Dr. Given, a professor at the University of Alberta, who
questioned the reliability and rigour of the documents published by Amnesty
International and the Research Directorate of the Board. Both experts noted
that the documents did not report facts, but simply reported information. The
Board refused to accept the expert testimony as the final authority in
assessing the documentary evidence, and preferred the documentary evidence to
that of the experts.
d) The Board
noted the applicant’s leadership role in MQM and rejected his testimony that he
had not seen or heard of violent activities of MQM members.
e) On the basis
of the documentary evidence, the Board was satisfied that the activities of MQM
fit the definition of terrorism. It was therefore also satisfied of the
existence of reasonable grounds to believe that MQM engages, engaged or will
engage in acts referred to in paragraph 34(1)(c) of the Act.
RELEVANT LEGISLATION
[9]
Immigration
and Refugee Protection Act, 2001, c. 27.
|
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).
|
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).
|
ANALYSIS
Standard of Review
[10]
The
first issue raised by the case at bar is whether the Board erred in its
assessment of whether an organization is described in paragraph 34(1)(c). This
Court previously applied the standard of reasonableness simpliciter to
the review of this question (Kanendra v. Canada (Minister of
Citizenship and Immigration), 2005 FC 923, at paragraphs 11 and 12, [2005]
F.C.J. No. 1156). Following the Supreme Court of Canada’s decision
in Dunsmuir v. New Brunswick, 2008 SCC 9, the question
is reviewable on the standard of reasonableness (Dunsmuir, at paragraphs
55, 57, 62, and 64).
[11]
The
second issue raised by the applicant is whether the Board erred in its
assessment of the evidence. The standard of review applicable to a decision of
the Board on questions of fact is reasonableness.
[12]
For
a decision to be reasonable there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, above at paragraph 47).
[13]
The
third issue raised is whether the Board erred in making a negative credibility
finding against the applicant. This determination was made in the course of
the Board’s analysis of the applicant’s admissibility pursuant to paragraph
35(1)(a). Because the Board’s conclusion on this point was found in favour of
the applicant, and not challenged in this application for judicial review, I will
not deal with this issue.
Did
the Board err in concluding that MQM is an organization described in paragraphs
34(1)(c) and (f))?
[14]
The
applicant seeks to review the Board’s finding that there are reasonable grounds
to believe that MQM has engaged in acts of terrorism. It is submitted that it
was insufficient for the Board to draw this conclusion based on the fact that
there were members of the organization engaged in acts of terrorism; rather,
the applicant argues that the organization must have engaged in such acts. The
applicant states that acts by members do not meet the requirement of the Act,
which states at paragraph 34(1)(f) that the organization must commit the acts.
[15]
The
Board found that the activities attributed to MQM in the documentary evidence
satisfied the definition of terrorism. It then went on to conclude that these
acts provided reasonable grounds to believe that MQM engages, has engaged or
will engage in acts of terrorism pursuant to paragraph 34(1)(c) of the Act.
[16]
It
was open to the Board to consider that the acts of individual members could be
attributed to the organization as a whole. The reasons reflect that the Board
did not attribute any importance to the argument that different factions of the
party exist, some of which might engage in acts of terrorism while others do
not. Further, the Board clearly stated the definition of terrorism, and
provided a lengthy review of acts reported by the documentary evidence that it
considered to meet the definition.
Did the Board err in its
assessment of the evidence?
[17]
The
applicant takes issue with the Board’s assessment of the evidence in several
respects. The applicant submits that the Board erred by failing to analyze the
evidence and consider whether MQMA had ever engaged in acts of terrorism. In
particular, he challenges the Board’s finding that the political party is not
separate from the rest of the organization, and reports to one leadership.
[18]
It
is my opinion that the Board adequately addressed the question of whether to
recognize multiple factions of MQM. The applicant’s testimony was considered,
as well as the document from York University indicating that MQM is
a large and multifaceted organization. Despite this, the Board stated:
The
political party is not separate from the rest of the organization in that it
continues to draw its leadership from Altaf Hussein.
[19]
It
was open to the Board to conclude that because the organization reported to a
single leader, the actions and intentions of certain factions can be impugned
upon the organization as a whole. In essence, the applicant seeks to have the
evidence presented to the Board reweighed by the Court. This function falls
squarely within the purview of the Board, and not that of the Court in the
context of a judicial review; the Court’s role is to assess the reasonableness
of the Board’s decision.
[20]
The
applicant argues that the applicant himself never committed acts of terrorism,
and even if he were aware of acts of violence, it would not make him complicit.
The respondents’ replies to this argument are misplaced; the Board’s
determination that the applicant is inadmissible is based on paragraphs
34(1)(c) and (f) of the Act, and as such the applicant needed only to be a
member of an organization for which there are reasonable grounds to believe engages,
engaged or will engage in acts of terrorism. I agree with the respondents that
his complicity is not at issue.
[21]
The
applicant finally argues that the Board failed to adequately explain why the
expert testimony was not accepted. The applicant cannot succeed on this
argument. The Board clearly considered the expert evidence in some detail. The
reasons even reveal the Board’s agreement with certain aspects of the expert
testimony. However, the Board stated that it would not accept the testimony as
the final authority in assessing the documentary evidence. The evidence
was not simply rejected without consideration. It is trite law that it is open
to the Board to prefer certain evidence over other sources.
[22]
The
respondents submit that this Court has recognized the reliability of
information obtained from independent non-governmental organizations. In Mahjoub
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1503, at paragraphs 72 and 73, [2007]
4 F.C.R. 247, the Court stated:
[72]
The delegate's blanket rejection of information from agencies with
worldwide reputations for credibility such as AI and HRW is puzzling,
especially given the institutional reliance of Canadian courts and tribunals on
these very sources. Indeed, the Minister of Citizenship and Immigration
frequently relies on information from these organizations in creating country
condition reports, which in turn are used by Immigration and Refugee tribunals,
in recognition of their general reputation for credibility (France Houle, "Le
fonctionnement du régime de preuve libre dans un système non-expert : le
traitement symptomatique des preuves par la Section de la protection des
réfugiés" (2004) 38 R.J.T. 263 at para. 71 and at n. 136).
[73]
This reputation for credibility has been affirmed by Canadian courts at
all levels. The Supreme Court of Canada relied on information compiled by AI,
as well as one of its reports, in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 (at 829, 830, 839).
That Court also cited AI in Suresh, above, at paragraph 11 in noting the
use of torture in the context of that case.
[23]
Viewed
in light of this line of cases, the reasonableness of the Board’s conclusion is
further confirmed.
[24]
Generally,
the respondents submit that the Board’s decision is reasonable; the evidence
before the Board met the standard of proof required to show reasonable grounds
for believing that MQM has engages in acts of terrorism. The standard of
reasonable grounds to believe requires something more than mere suspicion, but
less than 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 paragraph 18; Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, at paragraph 114, [2005] 2
S.C.R. 100; Jalil v. Canada (Minister of Citizenship and Immigration), 2006
FC 246, at paragraph 27, [2006] 4 F.C.R. 471).
[25]
It
is my opinion that the Board’s decision is justified, transparent, and
intelligible, and it falls within the range of acceptable outcomes which are
defensible with respect to the facts and law.
[26]
The
parties did not propose questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application is
dismissed. No question is certified.
“Michel Beaudry”
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