Docket: IMM-1217-15
Citation:
2015 FC 1299
Ottawa, Ontario, November 20, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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ZUBAIR AFRIDI
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
An immigration officer found that Zubair Afridi
was inadmissible to Canada on security grounds because of his past membership
in the Muttahida Quami Movement (MQM), an organization for which there are
reasonable grounds to believe has engaged in terrorism. Mr. Afridi then
sought Ministerial relief from the inadmissibility finding in accordance with
subsection 34(2) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27. His request was denied by the Honourable Steven Blaney, the then-Minister
of Public Safety and Emergency Preparedness.
[2]
Mr. Afridi now seeks judicial review of
this decision, asserting that the Minister’s decision was unreasonable as he
failed to carry out a balanced assessment of Mr. Afridi’s application for
Ministerial relief. I have concluded that the Minister did not err as alleged.
Consequently, Mr. Afridi’s application for judicial review will be
dismissed.
I.
Background
[3]
Mr. Afridi is a Mohajir citizen of
Pakistan. The Mohajirs are the Muslim people who settled in Pakistan after
being displaced by the partition of India in 1948, along with their
descendants.
[4]
In 1990, Mr. Afridi joined the All
Pakistani Mohajir Student Organization (APMSO), which was the student wing of
the MQM. His activities with APMSO included helping new students navigate the
college’s administration, and tutoring students in math and chemistry. He was
also involved in encouraging his fellow students to join the organization.
[5]
In 1992, the MQM split into two factions – the
MQM‑Altaf (MQM‑A) and the MQM‑Haqiqi. Mr. Afridi chose
to join the MQM‑A. After the split, the MQM‑A was subject to
intense government repression, causing many of the organization’s leaders to go
underground. Mr. Afridi states that this resulted in the shifting of many
of the organization’s logistical responsibilities to its student wing.
[6]
Mr. Afridi states that from June to August
of 1992, he was responsible for organizing secret emergency meetings of senior
MQM‑A leaders, arranging for hiding places for the leaders, secretly distributing
MQM‑A pamphlets, and organizing protests against the Pakistani
government. On August 14, 1992, Mr. Afridi was arrested and beaten by
Pakistani intelligence officers for his involvement in a protest that he helped
organize. He was released after his family paid the officers a bribe. Mr. Afridi
says that he ceased his involvement with the MQM‑A after this event.
[7]
Mr. Afridi again became involved with the
MQM‑A in 1993, when the organization decided to contest Provincial
Assembly elections. Mr. Afridi says that he helped his local MQM‑A
candidate prepare for the election, and that he also distributed voter cards.
After the 1993 election, Mr. Afridi was not involved with the MQM‑A
until 1997, when he once again assisted an MQM‑A candidate contest an election.
Mr. Afridi asserts that he had to work in secret, as, at that time, the MQM‑A
was not permitted to conduct its political activity openly.
[8]
On September 1, 1998, Mr. Afridi was
arrested by the police. He says that he was questioned, beaten, and threatened
with death if he did not assist the police as an informer. Mr. Afridi
refused to do so, and he was released three days later after his family paid
another bribe to the police.
[9]
After his release from detention,
Mr. Afridi made arrangements with his employer to leave Pakistan. He
arrived in Canada on a visitor’s visa on September 10, 1998, and contacted the
Toronto branch of MQM‑A in Canada shortly thereafter. According to
Mr. Afridi, he contacted the MQM in Canada in order to obtain advice on
accessing government services and finding a lawyer to represent him with his
refugee claim. Mr. Afridi says that his involvement with the MQM in Canada
was primarily social, and consisted of his attending monthly meetings and
social events. Mr. Afridi also attended at least two MQM‑A-organized
protests opposing the Pakistani government’s human rights abuses.
[10]
Mr. Afridi continued to be involved with
the MQM‑A until 2001. According to Mr. Afridi, he ended his
involvement with the organization because he had lost interest in Pakistani
politics, and had become more focused on his personal and professional life in
Canada.
II.
Mr. Afridi’s Immigration History
[11]
Mr. Afridi claimed refugee protection
shortly after arriving in Canada. He was found to be a Convention refugee on December
13, 1999, and he applied for permanent residency a few weeks later. He was
interviewed regarding his involvement with the MQM‑A on two occasions,
first by the Canadian Security Intelligence Service in 2001, and by Citizenship
and Immigration Canada in 2003. Following this latter interview, a CIC
immigration officer recommended that Mr. Afridi be granted Ministerial
relief from his inadmissibility.
[12]
On October 20, 2003, an immigration officer
found that Mr. Afridi was inadmissible to Canada pursuant to paragraph
34(1)(f) of IRPA, because of his involvement in the MQM‑A.
Mr. Afridi sought leave to judicially review this decision, and this Court
denied leave on March 25, 2004.
[13]
In the meantime, on November 4, 2003,
Mr. Afridi applied for Ministerial relief from his inadmissibility
pursuant to subsection 34(2) of IRPA. On December 14, 2007, the
Immigration Minister of the day denied Mr. Afridi’s application for
relief, citing the degree of his involvement in the MQM and his demonstrated
commitment to the organization. This decision was subsequently set aside by
Justice Russell, who found that the Minister had determined that
Mr. Afridi’s membership in the MQM was inherently contrary to the national
interest, and that, as a result, the Minister failed to consider other relevant
factors: Afridi v. Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FC 1192, [2008] F.C.J. No. 1471.
[14]
On February 16, 2012, a different Immigration
Minister once again denied Mr. Afridi relief under subsection 34(2) of IRPA.
This decision cited Mr. Afridi’s range of involvement with the MQM, his
continued participation in the MQM after his arrival in Canada, and the fact
that his participation was entirely voluntary. Mr. Afridi sought judicial
review of this decision, and his application was granted, on consent, in order
to allow for the Minister to reconsider his decision in light of the Supreme
Court’s decision in Agraira v. Canada (Minister of Public Safety and
Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559.
[15]
Upon reconsideration, the Minister of the day
once again denied Mr. Afridi’s request for relief, and it is this third
decision denying relief to Mr. Afridi under subsection 34(2) of IRPA
that underlies this application for judicial review.
III.
The Minister’s Decision
[16]
As is the practice in cases such as this, the
Canada Border Service Agency prepared a briefing note summarizing
Mr. Afridi’s application for consideration by the Minister. The briefing
note provides an overview of the Ministerial relief process and identifies the
legal test to be applied by the Minister in deciding whether relief should be
granted to Mr. Afridi.
[17]
The document then provides background
information regarding both the MQM and the MQM‑A, noting that from the
time that the organization was founded in 1984, it has been involved in a
number of violent demonstrations and clashes. While noting the MQM‑A’s
claim not to support the use of violence, the briefing note observes that the
organization has been held responsible for kidnappings, torture, murder, and
other acts of terrorism in Pakistan, and that both the Immigration and Refugee
Board and the Federal Court have upheld decisions finding that the MQM‑A
has engaged in acts of terrorism.
[18]
After reviewing Mr. Afridi’s immigration
history, the briefing note provides a detailed discussion of his involvement
with the MQM and the MQM‑A, including his version of certain events and
his position on various issues. The briefing note then provides an assessment
of Mr. Afridi’s application, discussing the evidence weighing against him
and explaining why Mr. Afridi’s arguments on various points should not be
accepted. The analysis concludes with a recommendation by the President of the
CBSA that Ministerial relief not be granted to Mr. Afridi.
[19]
The document concludes with a statement by the
Minister that he was “not satisfied that the presence
of Mr. Zubair Afridi in Canada would not be detrimental to the national
interest. I deny relief.”
IV.
Legal Principles Governing Applications for
Ministerial Relief
[20]
Before turning to consider Mr. Afridi’s
arguments, it is important to start by noting that it is the applicant for
Ministerial relief who bears the onus of satisfying the Minister that his or
her presence in Canada would not be detrimental to the national interest: Al
Yamani v. Canada (Minister of Public Safety and Emergency Preparedness),
2007 FC 381 at para. 69, 311 F.T.R. 193.
[21]
Where the Minister adopts the recommendation
contained in a CBSA briefing note, the briefing note will be taken to be the
Minister’s reasons: Al Yamani, above at para. 52; Haj Khalil v.
Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 213
at para. 29, 464 N.R. 98.
[22]
The test to be applied by the Minister in
deciding whether Ministerial relief should be granted in a given case was
discussed by the Supreme Court of Canada in Agraira, above. There, the
Court held that “a broad range of factors may be
relevant to the determination of what is in the ‘national interest’, for the
purposes of s. 34(2)”: at para. 87. In general, the Minister should be
guided by the factors including:
1. Will
the applicant’s presence in Canada be offensive to the Canadian public?
2. Have
all ties with the regime/organization been completely severed?
3. Is
there any indication that the applicant might be benefiting from assets
obtained while a member of the organization?
4. Is
there any indication that the applicant may be benefiting from previous membership
in the regime/organization?
5. Has
the person adopted the democratic values of Canadian society?
Agraira,
above at para. 87.
[23]
Given the discretionary nature of subsection
34(2) decisions, the standard of review to be applied in reviewing the
substance of a decision of the Minister refusing to grant Ministerial relief is
that of reasonableness: Agraira, above at paras. 49-50. An
interpretation of the national interest that relates primarily to national
security and public safety, but which does not exclude the other considerations,
is reasonable: Agraira, above, at para. 88.
[24]
In reviewing the reasonableness of the
Minister's exercise of discretion under subsection 34(2) of IRPA, the
Court is not entitled to re-weigh the evidence that was before the Minister.
Where the Minister has considered and weighed all of the factors that are
relevant to an application for Ministerial relief, the decision should be found
to be reasonable: Agraira, above at para. 91.
[25]
With this understanding of the relevant
principles governing a case such as this, I will turn next to consider
Mr. Afridi’s arguments as to why the Minister’s decision was unreasonable.
V.
Analysis
[26]
Mr. Afridi submits that the Minister’s
analysis focused unduly on whether he constitutes a danger to national security
today, and failed to consider other relevant factors identified in Agraira,
such as the upholding of Charter values and Canada’s democratic character.
Mr. Afridi takes particular issue with how the Minister dealt with
humanitarian and compassionate factors, such as the presence of his family in
Canada, his establishment in this country and the best interests of his
children.
[27]
There are two difficulties with this submission.
The first is that the Supreme Court made it clear in Agraira that
applications for Ministerial relief under subsection 34(2) of IRPA are
predominantly concerned with Canada’s national security and public safety and
are not intended to provide an alternate form of humanitarian and compassionate
relief. An applicant’s personal characteristics may, however, be relevant, for
example, to assist in determining whether the individual can be viewed as a
threat to the security of Canada: Agraira, above at para. 84.
[28]
The second difficulty with Mr. Afridi’s
submission is that the briefing note clearly identifies the humanitarian and
compassionate consideration on which he relies, describing them in some detail
over several paragraphs. It cannot thus be said that these considerations were
overlooked, and what Mr. Afridi really takes issue with is the weight that
was ascribed to these factors by the Minister.
[29]
Mr. Afridi also argues that the Minister
erred by misconstruing the evidence before him, particularly as it related to
the duration and nature of his involvement in the MQM and his awareness of the
MQM’s violent activities. Mr. Afridi says that the Minister erred in
finding that he had participated in the MQM for over 11 years when the evidence
showed that he left the organization in 1993, and that he had only participated
in the MQM activities after that for a period of a few months in 1993 and a few
weeks in 1997.
[30]
The briefing note clearly recognizes, however,
that Mr. Afridi’s involvement with the MQM and MQM‑A in Pakistan was
intermittent rather than continuous, and that he had severed his ties with the
organization in 2001. It also observes, however, that Mr. Afridi had
remained involved with the MQM in Pakistan for over a decade, and that he had
refused to act as a police informant notwithstanding the fact that he had been
repeatedly detained and tortured by Pakistani authorities. From this, the
Minister inferred that Mr. Afridi had demonstrated a strong commitment to
the organization.
[31]
Mr. Afridi argues that alternate inferences
should have been drawn from this evidence. That is not, however, a basis for
this Court to interfere with the Minister’s decision. The question is not whether
other inferences could have been drawn from the evidence that was before the
Minister, but whether the Minister’s decision was reasonable. The inferences
drawn by the Minister here were amply supported by the record and were thus
reasonable.
[32]
Mr. Afridi also says that the Minister erred
in finding that his activities with the MQM in Canada demonstrated his
commitment to the organization, given that his involvement with the
organization in Canada was largely social, and that his participation in
political activities was restricted to peaceful protests against the human
rights abuses carried out by the Pakistani government.
[33]
Mr. Afridi further submits that it was
unreasonable for the Minister to impute knowledge to him of the violent acts
carried out by the MQM and MQM‑A, given his brief and low-level
involvement in the organization. Not only did the Minister not accept that
Mr. Afridi’s involvement with the organization was either brief or
low-level, he also did not accept that Mr. Afridi would not have been
aware of the violence that was being employed by the organization to achieve
its political goals. Given that the MQM had engaged in terrorist activities in
Mr. Afridi’s home city of Hyderabad in the years immediately preceding his
joining the organization and his concession in a 2001 interview that he was
aware that some MQM‑A members used violence as a means of achieving their
goals, the finding that Mr. Afridi must have been aware that the MQM used
terrorist tactics was entirely reasonable.
[34]
Mr. Afridi submits that the Minister also failed
to consider the fact that the MQM‑A is a multi‑faceted
organization. According to Mr. Afridi, the Minister unreasonably
discounted the fact that it is a legitimate political party and that
Mr. Afridi’s involvement with the organization was entirely non-violent.
However, as the Supreme Court of Canada observed in Suresh v. Canada
(Minister of Citizenship and Immigration), [2000] 2 F.C. 592 at paras.
35-36, 183 D.L.R. (4th) 629, however laudable the goals of an organization may
be, the use of terrorism to achieve these goals is never justified.
[35]
Finally, Mr. Afridi submits that the
Minister unreasonably focussed on his past involvement with the MQM and the
nature of the organization rather than on his current personal situation. It is
not, however, an error for the Minister to consider past actions in assessing
whether a person’s continued presence to Canada would be detrimental to the
national interest. Indeed, national security and public safety consideration
are not limited to assessments of current and future risk, and it bears noting
that much of the focus in Agraira was on Mr. Agraira’s past
activities in Libya. Moreover, as the briefing note observes, Mr. Afridi
ceased being involved with the MQM in Canada because he became too busy with
his family and his job, and not because he was disassociating himself from the organization
and its tactics. It was therefore reasonable for the Minister to have regard to
these factors in assessing whether it was in the national interest to grant
Ministerial relief to Mr. Afridi.
VI.
Conclusion
[36]
As noted above, all of the factors on which
Mr. Afridi now relies were clearly identified in the briefing note. The
Minister had information before him that could have supported the granting of
Ministerial relief, and other information that militated against the granting
of such relief to Mr. Afridi. The Minister weighed this competing
information, and, at the end of the day, he was not satisfied that the presence
of Mr. Afridi in Canada would not be detrimental to the national interest.
This was a conclusion that was reasonably open to the Minister on the record
before him.
[37]
Consequently, this application for judicial
review is dismissed. I agree with the parties that the case is fact-specific,
and does not raise a question for certification.
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