Docket: IMM-1275-15
Citation:
2016 FC 192
Ottawa, Ontario, February 12, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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RASHID AMIN
SIDDIQUE
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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]
On October 3, 2002, an Immigration Officer found
that the applicant, Mr. Rashid Amin Siddique, was inadmissible to Canada on
security grounds because of his past membership in the Muttahida Quami
Movement-Altaf [MQM-A], an organization for which there are reasonable grounds
to believe has engaged in terrorism. Mr. Siddique then sought Ministerial
relief from his inadmissibility finding pursuant to subsection 34(2) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], which governed such
applications at the relevant time. The Minister of Public Safety and Emergency
Preparedness [the Minister] refused Mr. Siddique’s application for Ministerial
relief on February 24, 2015.
[2]
Mr. Siddique now seeks judicial review of the
Minister’s decision and submits that the decision is unreasonable; the Minister
erred in finding that it was implausible that he was not aware of the
MQM/MQM-A’s use of terrorist tactics and by relying on his past membership in
the MQM/MQM-A as determinative of the application.
[3]
Mr. Siddique’s perspective is that the
Minister’s decision, that Mr Siddique’s continued presence in Canada would be
detrimental to the national interest, is based almost exclusively on his past
involvement in the MQM/MQM-A, which he cannot change. Mr. Siddique believes
that the Minister failed to take into account his efforts to live peacefully in
Canada for over 20 years and that, as a result, Ministerial relief is illusory.
[4]
Although the applicant’s perspective is
understandable, there is no error in the Minister’s decision. The Minister’s
decision is discretionary and warrants significant deference. The decision is
based on a thorough assessment of all the evidence and relevant factors and
reflects the guidance of the Supreme Court of Canada in Agraira v Canada
(Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013]
2 SCR 559 [Agraira].
[5]
Mr. Siddique’s application for judicial review
is dismissed.
I.
Background
[6]
Mr. Siddique arrived in Canada in December 1995
and sought refugee protection based on his political opinion and membership in
the MQM/MQM-A in Pakistan. He was found to be a Convention refugee by the
Immigration and Refugee Board [IRB] in September 1998.
[7]
Mr. Siddique applied for permanent residence in
February 1999. He was subsequently interviewed by the Canada Border Services
Agency [CBSA] regarding his involvement with the MQM/MQM-A.
[8]
Mr. Siddique was interviewed by a Citizenship
and Immigration [CIC] Officer in August 2002. On October 3, 2002, the CIC
Officer determined that there were reasonable grounds to believe that he was
inadmissible pursuant to paragraph 34(1)(f) of the Act.
[9]
Mr. Siddique applied for Ministerial relief from
this finding on October 29, 2002.
[10]
In May 2008, the CBSA disclosed its draft
recommendation that Ministerial relief be denied. Mr. Siddique made submissions
in response.
[11]
In November 2012, another draft recommendation
was disclosed, again recommending that Ministerial relief be denied.
[12]
Mr. Siddique was denied Ministerial relief on
May 1, 2013. As a result, his 2002 application for permanent residence was
denied on June 15, 2013. He applied for leave and judicial review of the
Ministerial relief decision. However, the Minister agreed to re-determine his
application due to the Supreme Court of Canada’s decision in Agraira.
[13]
On February 12, 2014, the CBSA disclosed its
draft recommendation to Mr. Siddique, which again recommended that Ministerial
relief be denied. Mr. Siddique made submissions in response on May 7 and
November 17, 2014.
[14]
The Minister’s decision, which is described in
more detail below, is based on information gathered and analyzed by the CBSA
and summarised in a Briefing Note which sets out the factual background, the
relevant statutory provisions, the Ministerial relief process, the relevant
factors, the applicable legal test for Ministerial relief and its
recommendation.
II.
The Applicant’s Involvement with the MQM/MQM-A
[15]
The CBSA Briefing Note describes the activities
of the MQM and MQM-A and Mr. Siddique’s involvement based on the information he
provided.
[16]
Mr. Siddique stated that he joined the MQM, a
legitimate political organization, in Karachi to support the rights of Mohajirs
in Pakistan. From 1984 to 1993, he worked closely with his cousin, who was a
prominent MQM member who attended meetings of the party’s central leadership.
In his initial interview with CIC, he described himself as a passive MQM
member, but in his submissions for Ministerial relief he referred to himself as
an active member with responsibilities including arranging political rallies,
decorating the streets for gatherings and demonstrations, handing out flyers,
posting banners and participating in political rallies and demonstrations. He described
the political gatherings he participated in as peaceful.
[17]
He stated that after 1985, there was widespread
violence in Karachi and that the government blamed the MQM for acts of violence
that were actually committed by terrorists who were encouraged by the
government. He acknowledged that the MQM participated in violence in 1985, but
stated that he stayed away from this violence.
[18]
An organizational split in the MQM in 1993
resulted in the MQM-A and MQM-H factions. In his Personal Information Form
[PIF], Mr. Siddique stated that the MQM-A was blamed for incidents that the
MQM-H was responsible for. He added that he relocated within Karachi in 1993
due to the violence between the two factions, but in October 1994, he was
kidnapped, beaten and interrogated by armed MQM-H members. His family paid a
bribe to secure his release and he then kept a low profile and discontinued his
activities with the MQM‑A.
[19]
In December 1994, he went into hiding following
an assault and threats by the MQM-H members looking for his cousin. He and his
cousin were falsely accused of the death of a prominent MQM-H member and his
name was placed on the government of Pakistan’s terrorist list.
[20]
After learning that his cousin had been
arrested, tortured and killed in October 1995, he fled Pakistan and arrived in
Canada in December 1995.
[21]
Mr. Siddique attended MQM meetings in Canada
between 1995 and 1998 and made several small financial contributions to the
organization. In his CIC interview and in his 2002 and 2008 submissions, he
described that his involvement was minimal, that he did not participate in any
demonstrations and that he had not responded to phone calls from the
organization since 1998. However, in his February 1999 application for
permanent residence, he stated that he still considered himself a member, and
in his July 1999 interview, he stated that he was still attending meetings.
[22]
In his 2008 submissions, Mr. Siddique noted that
politics in Pakistan involves violence. However, he did not consider the
MQM/MQM-A to be a terrorist organization, believing that it advocated peace and
opposed violence. He maintained that the MQM-H and the Pakistani government
were responsible for the violence. He also maintained that he was a low level
party member who did not have a position of influence, opposed violence and did
not participate in violent activity. He stated that he learned of the criminal
activities of the MQM/MQM-A after arriving in Canada and then disassociated
himself. He explained that members in Pakistan were sheltered from this
information and although he had some information, the MQM/MQM-A leadership claimed
that these allegations were unfounded and government propaganda.
[23]
In his 2014 submissions, he stated that he had
never claimed that the MQM/MQM-A did not participate in violence at all;
rather, that he was not aware of its role in provoking violence. He also argued
that not all violence constitutes terrorism.
III.
The Minister’s Decision
[24]
As noted above, the CBSA Briefing Note includes
the recommendation by the President of the CBSA that Ministerial relief should
not be granted. The Minister agreed with the recommendation and indicated that
he was “not satisfied that the presence of Mr. Rashid
Amin Siddique in Canada would not be detrimental to the national interest. I
deny relief.”
[25]
The reasons for the Minister’s decision are,
therefore, the reasons set out in the CBSA Briefing Note (Canada (Minister
of Public Safety and Emergency Preparedness) v Khalil, 2014 FCA 213 at para
29, 464 NR 98).
[26]
The CBSA noted that, while the facts differ, the
principles established by the Supreme Court of Canada in Agraira regarding
the application of subsection 34(2) apply.
[27]
The CBSA found that the evidence regarding Mr.
Siddique’s involvement first, in the MQM and then in the MQM-A supports the
conclusion that his association with the MQM/MQM-A was active, for the most
part, and his involvement was not insignificant.
[28]
In response to Mr. Siddique’s claim that he was
always opposed to violence, was not involved in violent activity and was not in
a position of influence in the organization, the CBSA found that, regardless,
his political activities and financial support contributed to the MQM/MQM-A as
a whole, an organization for which there are reasonable grounds to believe has
engaged in acts of terrorism.
[29]
Mr. Siddique’s acknowledgement that he avoided
the violence that took place during the 1985 protests was found to demonstrate
that he was aware that the MQM engaged in violence. He also admitted to being
aware of the factional fighting between the MQM-A and MQM-H in the early 1990s,
including the 1994 violent clash between the MQM-A and MQM-H, which occurred in
his neighbourhood and resulted in casualties.
[30]
The CBSA referred Mr. Siddique’s submissions
which took issue with the CBSA’s consideration of the fact that his name was on
a “terrorist list”, maintaining that this was
due to false criminal charges arising from the 1994 clash. However, the CBSA
clarified that it did not presume that he was complicit or participated in acts
of terrorism because his name was on this list, but considered this as a factor
in finding that there was a reasonable likelihood that he was aware of
the MQM/MQM-A’s participation in violent activities. Together with the other
evidence, the CBSA found that it was implausible that he was not cognizant of
the violent activities perpetrated by the MQM/MQM-A until after his arrival in
Canada or that he believed that many of the acts of violence were perpetrated
by others or were government propaganda.
[31]
The CBSA rejected Mr. Siddique’s submission,
which sought to distinguish violence from terrorist violence, noting that the
jurisprudence does not recognize such a distinction (Suresh v Canada
(Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh]).
In addition, the CBSA noted that the Federal Court has upheld findings that the
MQM/MQM-A engaged in acts of terrorism.
[32]
The CBSA found that the evidence of Mr.
Siddique’s history of involvement in Pakistan, his continued support of the
MQM/MQM-A after arriving in Canada, and his failure to disassociate from it, is
indicative of a pattern of support and level of involvement in the
organization.
[33]
The CBSA acknowledged that the MQM/MQM-A may
have pursued legitimate political goals and activities, but found that this
does not detract from its reliance on terrorist methods and does not justify Mr.
Siddique’s involvement and commitment to the group given his knowledge of those
terrorist activities.
[34]
The CBSA gave Mr. Siddique’s expression of
remorse in 2008 little weight given that it came ten years after his alleged
disassociation from the MQM-A and only in response to the negative draft Ministerial
relief recommendation.
[35]
The CBSA acknowledged Mr. Siddique’s submissions
that he is law-abiding, has no criminal record and does not pose a danger to
Canada, as well as the 2002 report of a CIC Officer who was not convinced that Mr.
Siddique’s presence in Canada posed a danger to national security. The CBSA
found that he did not meet his burden to satisfy the Minister that his presence
in Canada would not be detrimental to the national interest.
[36]
The CBSA also acknowledged that Mr. Siddique
remains in a “legal limbo” as a Convention
refugee in Canada who cannot obtain permanent resident status due to his
inadmissibility and, therefore, cannot reunite with his family. The CBSA found
that his status as a Convention refugee does not on its own, or in conjunction
with the other factors, entitle him to Ministerial relief. The CBSA added that
he remained a Convention refugee and was not subject to removal.
[37]
The letters of support, medical submissions and
financial submissions were considered but were found not determinative when
considered alongside the predominant considerations relating to national
security and public safety.
[38]
In response to Mr. Siddique’s submissions that
the test for Ministerial relief should be forward looking, the CBSA found that
the national interest considerations are not so limited, as noted in Agraira.
Taking into consideration all the circumstances of the case and the evidence,
the CBSA found that it would be detrimental to the national interest to grant relief
from inadmissibility, given Mr. Siddique’s failure over a long period of time
to disassociate from the MQM/MQM-A and his commitment to the group, despite the
reasonable likelihood that he knew it engaged in terrorist activities.
IV.
The Issues
[39]
The applicant argues that the decision is not
reasonable because:
(1)
The implausibility finding is not reasonable;
the Minister erred in finding that it was implausible that the applicant was
not aware of the MQM/MQM-A’s use of terrorist tactics and relied on speculation
that was contrary to the applicant’s evidence and the country conditions at the
time; and,
(2)
The Minister’s assessment of the application is
not reasonable; the Minister erred by considering the applicant’s membership in
the MQM/MQM-A as determinative of the application and merely listed the other
relevant and positive factors without providing any reasons for disregarding
them.
V.
The Standard of Review
[40]
The standard of review of the Minister’s
decision regarding a denial to grant relief pursuant to subsection 34(2) is
that of reasonableness (Agraira at para 50).
[41]
Where the standard of reasonableness applies,
the Court considers whether the decision “falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190). Deference is owed to the decision maker and the Court will
not re-weigh the evidence.
VI.
Other Relevant Principles
[42]
As noted by Justice Mactavish in Hameed v
Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC 1353
at paras 24-29, [2015] FCJ No 1488 (QL) [Hameed], several principles
guide the judicial review of a Minister’s decision pursuant to subsection
34(2). These include that: the onus is on the applicant to satisfy the Minister
that his presence in Canada would not be detrimental to the national interest;
the test to be applied to determine whether Ministerial relief should be
granted is guided by a range of factors, as established in Agraira, and
includes the factors set out in the CIC Guidelines; and, Ministerial relief is
distinct from humanitarian and compassionate [H&C] relief, although
personal factors may be considered in an application for Ministerial relief in
the context of the determination whether the applicant can be viewed as a threat
to the security of Canada.
[43]
In Agraira, the Supreme Court of Canada
found that the Minister’s interpretation of the term “national
interest”, which focussed on matters related to national security and
public safety, but also encompassed the considerations in the Guidelines and
analogous considerations, was reasonable (at para 64). The Court elaborated and
provided a summary at paras 87-88:
[87] In summary, an analysis based on
the principles of statutory interpretation reveals 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). Even excluding H&C considerations,
which are more appropriately considered in the context of a s. 25 application,
although the factors the Minister may validly consider are certainly not limitless,
there are many of them. Perhaps the best illustration of the wide variety of
factors which may validly be considered under s. 34(2) can be seen in the ones
set out in the Guidelines (with the exception of the H&C considerations
included in the Guidelines). Ultimately, which factors are relevant to the
analysis in any given case will depend on the particulars of the application
before the Minister (Soe, at para. 27; Tameh, at para. 43).
[88] This interpretation is compatible
with the interpretation of the term “national interest” the Minister might have
given in support of his decision on the appellant’s application for relief. It
is consistent with that decision. The Minister’s implied interpretation of
the term related predominantly to national security and public safety, but did
not exclude the other important considerations outlined in the Guidelines or
any analogous considerations. In light of my discussion of the principles
of statutory interpretation, this interpretation was eminently reasonable.
[Emphasis added.]
VII.
Is the Implausibility Finding Reasonable?
The Applicant’s Submissions
[44]
The applicant argues that the Minister’s central
finding is that he was a long-term, committed member of the MQM/MQM-A and that
he knew, or was reasonably likely to know, that the MQM/MQM-A was involved in
terrorist activities. The applicant argues that this finding is based on an
unreasonable implausibility finding.
[45]
The applicant submits that credibility findings
based on plausibility must be made cautiously and only when events could not
have happened as described (Valtchev v Canada (Minister of Citizenship and
Immigration), 2001 FCT 776 at para 7, [2001] FCJ No 1131 (QL) [Valtchev].
[46]
First, the applicant submits that the
implausibility finding does not reflect consideration of all of the evidence.
Instead, the Minister’s decision is based on speculation about what people
ought to have known at the time. This ignores the chaotic country conditions in
Pakistan in the 1980s and 1990s when information was distorted by the
government and other sources of information were not easily accessible, as they
are today.
[47]
The applicant adds that the MQM/MQM-A was a
political organization that represented millions. His belief at the time was
that it was not engaged in terrorism. Although he does not believe this now,
the Minister cannot impose current thinking about the availability of
information to the situation that existed in the 1980s and 1990s.
[48]
The applicant points to the 1996 Amnesty
International report on the “Human Rights Crisis in Karachi” which notes that “[i]n the highly politicized climate of Karachi, the truth is
difficult to establish with certainty by any human rights organization….”
The report notes that the government, MQM-H and MQM-A were all committing human
rights abuses and that misinformation was rampant and often deliberately
created by the government. The applicant submits that this report corroborates
that the government was spreading misinformation and that the MQM-A leadership
misled its members.
[49]
The applicant points out that he provided all
the information relied on by the Minister. He disclosed his involvement with
the MQM/MQM-A when he arrived in Canada, consistently denying that he had
knowledge of the MQM/MQM-A’s involvement in terrorism while he was associated
with the organization.
[50]
Second, the applicant argues that the IRB and
the CIC Officer both found him to be credible; they heard from him first hand
and were in the best position to assess his credibility, unlike the Minister.
Although the Minister is entitled to reach different conclusions, the applicant
argues that there must be a clear explanation of why the Minister ignored these
earlier credibility findings.
[51]
Third, the applicant argues that the Minister
erred by conflating “violence” and “terrorism”, because not all violence is terrorism,
noting that the definition of terrorism in Suresh includes both an act
and a purpose. He submits that his involvement in the MQM/MQM-A was only to advance
legitimate political purposes.
The Respondent’s Submissions
[52]
The respondent submits that the Minister
reasonably concluded that the applicant failed to discharge his burden of
demonstrating that his presence in Canada would not be detrimental to the public
interest.
[53]
The Minister was not selective in considering
the evidence and did not need to find that the applicant’s entire account
lacked credibility in order to find that certain parts of his account were
implausible.
[54]
Nor did the Minister err in not adopting the
credibility findings made by the IRB and the CIC Officer. The IRB assessed
whether the applicant was a Convention refugee, i.e., whether he was at risk in
Pakistan, not whether he was inadmissible to Canada. Neither the IRB nor the
CIC Officer assessed whether the applicant was aware of the MQM/MQM-A’s use of
violence and terrorism to achieve its political goals. The Minister considered
a different issue, which was whether it was plausible that the applicant was
not aware of the MQM/MQM-A’s activities.
[55]
The country condition evidence regarding the
political situation in Pakistan in the 1980s and 1990s was not ignored and does
not explain or justify the applicant’s claimed lack of awareness given his
activities.
[56]
The respondent submits that any type of violence
can be considered in determining that an organization engaged in terrorism,
noting that the IRB and the Federal Court have upheld the finding that the
MQM/MQM-A is an organization that relies on terrorist tactics to achieve its
political goals.
[57]
The respondent adds that the question before the
Minister was not whether the applicant was part of an organization that
committed terrorist acts. That decision had already been made by the
inadmissibility finding. The question before the Minister was whether it was in
the national interest to allow the applicant to remain in Canada. In
considering that issue, the Minister took all the facts into account, including
the applicant’s knowledge of the MQM/MQM-A’s use of violence and his continued
membership and provision of support to the organization, which signals that he
condones such violence.
The Implausibility Finding is Reasonable
[58]
The Minister reasonably found that it was
implausible that the applicant was not aware of the MQM/MQM-A’s use of violence
to advance its cause. The applicant lived in Karachi, the centre of violent
activity, he supported the activities of his cousin, a prominent member, and he
experienced the violence between the MQM-A and MQM-H to the extent that he
relocated and went into hiding. The applicant acknowledged that the MQM/MQM-A
was engaged in violence and that civilian deaths occurred. Although he did not
consider it to be terrorism and characterised it as self-defence, it was
violence nonetheless, in pursuit of political goals.
[59]
The implausibility finding was not based on
speculation, but on the information provided by the applicant and the country
condition evidence, all of which was considered and noted in detail in the CBSA
Briefing Note. With respect to the applicant’s argument that the Minister
ignored the documentary evidence describing the chaotic situation in Pakistan
at the time, including that the Pakistani government blamed the MQM/MQM-A for
violence committed by the government and that no one knew the truth, the CBSA Briefing
Note refers to Mr. Siddique’s submissions that he believed the violence
attributed to the MQM/MQM-A was due to government propaganda, but clearly
rejected that assertion.
[60]
Even in the chaotic political context of the
time and without the benefit of today’s methods of information sharing, the
Minister’s implausibility finding is reasonable.
[61]
The Minister was not bound to adopt the
credibility findings made by the IRB or the CIC Officer who interviewed the
applicant. The IRB and the CIC Officer did not assess the same issue as the
Minister. As the respondent notes, there is no inconsistency between the IRB
finding that the applicant’s evidence of the risk he faced was credible and the
Minister’s finding that it was implausible that the applicant was unaware that
the MQM/MQM-A engaged in terrorist activities.
[62]
Moreover, the Minister was entitled to believe
some aspects of the applicant’s story but to also draw inferences that other
aspects of his story were implausible.
[63]
In NK v Canada (Minister of Public Safety and
Emergency Preparedness), 2015 FC 1377, [2015] FCJ No 1449 (QL) [NK],
Justice Russell considered the reasonableness of the Minister’s decision to
refuse relief from a finding of inadmissibility and noted at paras 80-81:
[80] In exercising his discretion in
this context, the Minister carefully examined the Applicant’s assertion that he
was unaware of MQM’s acts of terrorism and came to the conclusion referred to
above. […]
[81] There was no direct evidence of
the Applicant’s knowledge of terrorism before the Minister but, as the
Applicant concedes, the Minister was entitled to draw inferences. In doing
this, I cannot say that his conclusions fall outside of the range posited in Dunsmuir,
above. Consequently, I can find no reviewable error on this ground.
[64]
Similarly, in the present case, the Minister
drew a reasonable inference that the applicant knew that the MQM/MQM-A engaged
in violence.
VIII.
Is the Minister’s Assessment of the Application
for Ministerial Relief Reasonable?
The Applicant’s Submissions
[65]
The applicant submits that the Minister erred by
focusing only on his past membership in the MQM/MQM-A until the late 1990s and
his failure to disassociate himself as determinative of his application for
Ministerial relief.
[66]
The applicant adds that the emphasis on his past
is particularly unreasonable given that he has waited since 2002 for a
decision. The same decision could have been made in 2002 given that his
subsequent efforts and circumstances were not considered.
[67]
The applicant acknowledges that the test for
Ministerial relief is not limited to future considerations or a forward looking
assessment. In accordance with Agraira, past actions are relevant and
may be sufficient for the Minister to determine that a person’s presence would
be detrimental to the national interest in the future. However, the Minister
failed to consider whether and how the applicant’s past is determinative of his
future. The Minister’s approach makes it impossible for him to ever overcome
his past.
[68]
The applicant submits that a forward looking
assessment of his presence in Canada should have been conducted, along with
consideration of the other factors such as his limited involvement in the
MQM/MQM-A since arriving in Canada, the psychological impact of a negative
decision, his medical issues and his activities since arriving in Canada.
[69]
The applicant argues that the Minister’s
approach results in the test for inadmissibility under subsection 34(1)
pre-determining the test for Ministerial relief under subsection 34(2), which
makes Ministerial relief illusory.
[70]
The applicant also submits that the Minister
simply cited a list of the factors considered without providing any reasons why
the positive factors do not outweigh the national security and public safety
concerns.
The Respondent’s Submissions
[71]
The respondent submits that the considerations
in a Ministerial relief application are not limited to considerations of
present or future danger. The Minister’s interpretation of the national
interest is consistent with Agraira. In Agraira, the Minister did
not take a forward looking approach and considered the same factors as in the
present case, yet the Supreme Court of Canada found the decision to be
reasonable.
[72]
The Minister’s focus on the applicant’s past
activities does not make the exercise of discretion meaningless. The CBSA
Briefing Note cites the applicant’s long involvement in the MQM/MQM-A, the
nature and timing of his activities, and his continued support after becoming
aware of the violent activities – all factors which raise national security
concerns.
[73]
The Minister explicitly referred to the factors
in the applicant’s favour, but is entitled to give factors that address
national security and public safety more weight. In Agraira, the Supreme
Court of Canada found that the predominant factors to be considered in
interpreting national interest under subsection 34(2) are national security and
public safety and that subsection 34(2) is distinct from section 25 which
permits relief on H&C grounds.
The Minister’s Assessment of the Application for
Ministerial Relief is Reasonable; the Minister applied the principles in
Agraira and did not err in exercising his discretion
[74]
Subsection 34(2) governed the application for
Ministerial relief against a finding of inadmissibility pursuant to subsection
34(1) on national security grounds at the time of the applicant’s application
and stated:
|
34(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.
[Emphasis added.]
|
34(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.
[Soulignement
ajouté.]
|
[75]
In Agraira, as noted above, the Supreme
Court of Canada provided guidance on the interpretation of “detrimental to the national interest”. In Hameed at
para 26, Justice Mactavish highlighted the test set out in Agraira at
para 87 and specifically noted the factors to be considered, which are derived
from the CIC Guidelines.
[76]
It is apparent from the CBSA Briefing Note that
the Guidelines were considered along with the sub-questions noted therein. For
example, to assess whether the applicant’s presence would be offensive to the
Canadian public, the CBSA should consider, among other issues: whether the
activity was an isolated event; when the activity occurred; whether violence
was involved; whether the person was personally involved or complicit in the
activities of the regime or organization; the length of time that the applicant
was a member of the organization; whether the organization was internationally
recognized as one that uses violence to achieve its goals; the role or position
of the person within the organization; and whether there is evidence to
indicate that the person was not aware of the atrocities or terrorist
activities committed by the organization.
[77]
The CBSA and the Minister relied on these and
other considerations which led the Minister to find that he was not satisfied
that Mr. Siddique’s presence in Canada would not be detrimental to the national
interest. The CBSA Briefing Note highlighted that Mr. Siddique worked for MQM/MQM-A
in Pakistan for at least 15 years and continued to support the MQMA in
Pakistan even after his own kidnapping, beating and threats, which prompted him
to relocate within Karachi. The nature of his activities, although described by
him as low level, included arranging political rallies, posting flyers and
preparing the streets for demonstrations. He worked alongside his cousin, who
he knew was a prominent member, and who was forced into hiding and later
tortured and killed in 1995 – a clear signal of the level and nature of
violence between the two factions. In addition, he did not disassociate himself
from the MQM/MQM-A despite his awareness of its violence until at least four
years after coming to Canada. His own characterisation of this violence as
something other than terrorist violence does not overcome the fact that he was
aware of the nature of the violence, which resulted in deaths, and that
violence was used to achieve political goals.
[78]
In Afridi v Canada (Minister of Public Safety
and Emergency Preparedness), 2015 FC 1299, [2015] FCJ No 1377 (QL) [Afridi],
Justice Mactavish noted:
[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.
[79]
Similarly, in the present case, the Minister did
not err in considering Mr. Siddique’s past in determining whether he had
satisfied the Minister that his continued presence in Canada would not be
detrimental to the national interest. As noted above, the CBSA Briefing Note
thoroughly describes the factors relied on.
[80]
The Minister’s application of subsection 34(2)
to the facts does not make relief illusory or impossible. The factors
considered to grant or deny relief differ from those that resulted in the
applicant’s inadmissibility. The finding of inadmissibility on security grounds
pursuant to paragraph 34(1)(f) focusses on membership in an organization, in
this case one that there are reasonable grounds to believe engages, has engaged
or will engage in acts of terrorism.
[81]
With respect to the applicant’s argument that
the Minister failed to give adequate consideration to or explain his reasons
for downplaying the positive factors, in Agraira, the Supreme Court
noted the distinction between Ministerial relief and relief based on H&C
grounds, both of which can relieve against the requirements of IRPA:
[44] In short, s. 34(2) of the IRPA
establishes a pathway for relief which is conceptually and procedurally
distinct from the relief available under s. 25 or s. 25.1. It should be
borne in mind that an applicant who fails to satisfy the Minister that his or
her continued presence in Canada would not be detrimental to the national
interest under s. 34(2) may still bring an application for H&C relief.
Whether such an application would be successful is another matter.
[Emphasis added.]
[82]
Although the Act has been amended to both change
the wording of the Ministerial relief provision (which is now found in section
42.1 and requires that an applicant “satisfy the
Minister that it is not contrary to the national interest”) and make
those found inadmissible to Canada ineligible for H&C relief, the purposes
of the two forms of relief differ. In Agraira at para 84, the Supreme
Court noted that a Ministerial relief application should not be transformed
into an alternative form of H&C relief, adding, “But
s. 34 does not necessarily exclude the consideration of personal factors that
might be relevant to this particular form of review.”
[83]
The Supreme Court found that the predominant
considerations for subsection 34(2) are national security and public safety. In
addition, other “important considerations outlined in
the Guidelines or any analogous considerations” can be taken into
account and the factors which are relevant to the Minister’s analysis “will depend on the particulars of the application before the
Minister” (Agraira at paras 87-88). As a result, H&C factors
can be considered, but only in the context of determining whether an
applicant’s presence in Canada is detrimental to the national interest.
[84]
Judicial review focuses on whether the decision
is reasonable and there is no basis to find that it was not. The Minister’s
decision addresses all of the evidence and applies the governing jurisprudence
to the facts before the Minister. It is not the role of the Court to re-weigh
the evidence. Nor is the Minister required to provide reasons for why certain
factors were given more weight than others. As noted in Agraira, the
predominant factors are national security and public safety and, therefore,
attaching more weight to those factors is reasonable.
[85]
This Court recently found the Minister’s
exercise of discretion to be reasonable on similar facts in four recent cases: NK,
Afridi, Hameed and Sellathurai v Canada (Minister of Public
Safety and Emergency Preparedness), 2015 FC 1264, [2015] FCJ No 1338 (QL).
[86]
The consequences for the applicant are no doubt
of concern to him. I note that the applicant indicates that he applied for
H&C relief and was refused, however, the Minister agreed to reconsider that
application in 2014. As noted above, the Act was amended to limit H&C
relief and it is not known whether the applicant’s application remains pending.
In Agraira, the Supreme Court of Canada’s findings regarding the
distinction between relief pursuant to subsection 34(2) and section 25 were
based on the law as it existed before the amendments – i.e., which did not
exclude persons found inadmissible pursuant to section 34 from making a H&C
application.
[87]
In Hameed, the applicant argued that Agraira
should be revisited because it was premised on H&C relief being available
and this is no longer the law. Justice Mactavish considered the issue, noting:
[51] The decision in Agraira was
rendered by the Supreme Court on June 20, 2013. The Faster Removal of
Foreign Criminals Act, S.C. 2013, c. 16 (FRFCA), received royal assent the
previous day. Paragraph 9 of the FRFCA amended subsection 25(1) of IRPA,
rendering persons found inadmissible to Canada under sections 34, 35 and 37 of
IRPA ineligible for humanitarian and compassionate relief under to subsection
25(1) of the Act.
[52] Although the FRFCA was introduced
in Parliament on June 20, 2012, the Supreme Court did not consider the effect
of the pending legislative change in Agraira, and it may be that the
question raised by Ms. Hameed will have to be addressed at some point down the
road. There are, however, several reasons why this is not the appropriate case
in which to do it.
[88]
Justice Mactavish noted that the decision in Agraira
was binding on the Minister when he determined the application for Ministerial
relief and it is binding on this Court. In addition, Ms. Hameed had raised this
argument only at the last minute in her oral submissions. Moreover, relevant
H&C factors had been considered in the context of the relief application.
[89]
In the present case, the applicant did not raise
this particular argument, only that H&C factors were relevant but were
discounted. As noted above, the Minister is entitled to weigh all the relevant
factors as he sees fit. The H&C considerations, including that the
applicant has no criminal record, his “legal limbo”,
his separation from his family and his medical issues, were noted, but did not
change the outcome when considered along with the predominant considerations
relating to national security and public safety.
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