Docket: IMM-5609-15
Citation:
2016 FC 729
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 28, 2016
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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RABIA BEGUM
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
This Court has, on several occasions, determined
that it was reasonable for the Immigration Division (ID) to conclude that the
MQM and/or the MQM-A were terrorist organizations, within the meaning of
paragraph 34(1)(f) of the Immigration and Refugee Protection Act
(IRPA), S.C. 2001, c. 27 (NK v. Canada (Public Safety and
Emergency Preparedness), 2015 FC 1377 at paragraph 80 [NK];
Naeem v. Canada (Citizenship and Immigration), 2010 FC 1069 [Naeem];
Mohiuddin v. Canada (Citizenship and Immigration), 2010 FC 51
[Mohiuddin]). Engaging in promotional activities in order to attract new
adherents, or recruiting for such an organization, in itself, makes an
individual complicit in the activities of such an organization.
[34] As was stated in Catal v.
Canada (M.C.I.), 2005 FC 1517, at para. 8, the test for
complicity is personal and knowing participation in a common purpose shared
with the organization:
A. if the organization is one with a
brutal and limited purpose, then membership in that organization deems the
member to be complicit in its crimes; or
B. if the organization is one whose
commission of crimes are incidental to some other, primary purpose, complicity
is determined by a fact-driven case-by-case analysis, having regard to the
following factors adopted by Hughes J. in Bedoya v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1092:
1. The Nature of the Organization
2. The Method of Recruitment
3. Position/rank within the
Organization
4. Length of time in the Organization
5. The Opportunity to Leave the
Organization
6. Knowledge of the Organization’s
Atrocities
(As specified by Mr. Justice Mandamin
in Qureshi v. Canada (Citizenship and Immigration), 2009 FC 7
[Qureshi])
II.
Introduction
[2]
This is an application for judicial review under
subsection 72(1) of the IRPA against a decision rendered by the ID of the
Immigration and Refugee Board regarding the validity of an inadmissibility
report drafted in accordance with subsection 44(1) of the IRPA.
III.
Facts
[3]
The applicant, Rabi Begum (70 years old),
is a citizen of Pakistan.
[4]
The applicant states in her affidavit that after
the separation of the MQM and the MQM-A, she became a member of the MQM-A in 1992.
While she supported this organization, she allegedly mainly did charity work
for women. In 2006, she allegedly received threats from MQM-H members that
she would be harmed unless she ceased her involvement with the MQM. In
January 2013, the applicant was allegedly stabbed by MQM-H members.
Following this assault, she lost the use of one kidney. On September 14,
2014, the applicant arrived in Canada and filed a claim for refugee protection.
In January 2015, a report under section 44 of the IRPA was drafted
against the applicant, in which it was determined that the applicant was
inadmissible under paragraph 34(1)(f) of the IRPA. Following this
report, the minister referred the matter to the ID, and, in a decision dated
November 26, 2015, the ID also determined that the applicant was
inadmissible.
IV.
Contested decision
[5]
In order to determine if the applicant was
inadmissible under paragraph 34(1)(f) of the IRPA, the ID applied
the standard of “reasonable grounds to believe,”
as stated in section 33 of the IRPA.
[6]
The ID proceeded with a two-step analysis in
order to determine whether the applicant was a member of an organization that
there were reasonable grounds to believe engages, has engaged or will engage in
acts of terrorism—namely the MQM and the MQM-A. First, the ID determined that
there were reasonable grounds to believe that the applicant was a member of the
MQM and/or the MQM-A. The ID, based on the evidence in the record, concluded
that the applicant, in addition to being involved in charity work, was also
involved politically with these organizations, since she had gone door-to-door
and had promoted the MQM’s electoral platform. In addition, a letter dated
November 2014 and signed by an MQM representative indicated that the
applicant was a permanent member of the MQM and had worked for the organization
since 1992. Furthermore, the applicant, in her refugee claim, identified
herself as a senior MQM employee from January 1992–September 2014,
without making any distinction between the MQM and the MQM-A. Consequently, the
ID determined that the applicant was a member of both the MQM and the MQM-A.
[7]
Second, the ID determined, based on the
definition of an act of terrorism in Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 SCR 3, 2002 SCC 1
[Suresh], that there were reasonable grounds to believe that the MQM
and/or the MQM-A were involved in acts of terrorism, even though the MQM is not
a listed terrorist entity within the meaning of the Anti-terrorism Act,
S.C. 2001, chapter 41. In summary, the ID determined that the
applicant was inadmissible to Canada under paragraph 34(1)(f) of
the IRPA.
V.
Issues in dispute
[8]
The Court is of the opinion that the issues are
as follows:
1.
Was it reasonable for the ID to conclude that
the applicant was a member of the MQM?
2.
Was it reasonable for the ID to conclude that
there were reasonable grounds to believe that the MQM and the MQM-A engage,
have engaged or will engage in acts of terrorism?
VI.
Parties’ positions
[9]
The applicant is of the opinion that the ID
wrongly concluded that she was an MQM member. She argues that she was not
involved in the MQM’s political activities and that she only did charity work.
She was never sworn into the MQM and never completed the tasks required to
become a member. Furthermore, it was after the split from the MQM that the
applicant became a member of the MQM-A. With regard to the second point, the
applicant maintains that the ID erred in its assessment of the acts committed
by the MQM, the MQM-A and the MQM-H. The documentary evidence does not show
which faction of the MQM actually committed the alleged acts of terrorism. The
MQM-A is not on the list of terrorist organizations in the United States. The
applicant claims that the ID therefore erred in failing to distinguish between
the different factions of the MQM, as well as in failing to state which
specific acts committed by the MQM-A would be included under the definition of
an act of terrorism pursuant to Suresh, above.
[10]
The respondent argues that the ID made a
reasonable determination when it concluded that the applicant was an MQM
member, and, that the MQM is a terrorist organization within the meaning of
paragraphs 34(1)(c) and 34(1)(f) of the IRPA. First, it was
reasonable for the ID to find that the applicant was a member of the MQM. The
evidence shows that the applicant was, by her own admission, a member of the
MQM-A. In addition, the definition of a member under paragraph 34(1)(f)
must be interpreted in the broadest sense (Chiau v. Canada (Minister of
Citizenship and Immigration), [2001] 2 FCR 297 [Chiau]) –
the fact of not having sworn allegiance is not a determining factor in itself (Qureshi,
above). Second, it was reasonable for the ID to determine that the MQM is a
terrorist organization. The evidence in the record does not support the
applicant’s argument that she was a member of the MQM-A only. The ID did not
need to make a distinction between the activities of the MQM and those of the
MQM-A (Qureshi, above, at paragraphs 28–29). In addition, the ID,
basing its decision on the definition of terrorism in Suresh, above, at
paragraph 98, reasonably concluded, based on objective documentary
evidence, that the MQM had committed acts of terrorism. Furthermore, this Court
has already determined in several decisions that it was reasonable for the ID
to conclude that the MQM is a terrorist organization within the meaning of
paragraph 34(1)(f) of the IRPA (see, for example, Memon v.
Canada (Citizenship and Immigration), 2008 FC 610; Uddin
Jilani v. Canada (Citizenship and Immigration), 2008 FC 758).
Lastly, it is irrelevant that the MQM is not on the lists of terrorist
organizations in the United States and the United Kingdom.
VII.
Analysis
[11]
The ID’s conclusions—that the applicant is a
member of the MQM and/or the MQM-A, and that the MQM and MQM-A are
organizations that there are reasonable grounds to believe are and were engaged
in acts of terrorism—must be analyzed using the standard of reasonableness (Kanagendren
v. Canada (Citizenship and Immigration), 2015 FCA 86 [Kanagendren].
[12]
The applicant maintains that it was not
reasonable for the ID to conclude that she was a member of the MQM under
paragraph 34(1)(f) of the IRPA since she simply helped individuals
in need in Pakistan and was not involved in the MQM’s political activities.
[13]
It is important to reiterate that the applicable
standard in determining whether the applicant was a member of the MQM is that
of “reasonable grounds to believe” (see
section 33 of the IRPA; Kanagendren, above). The purpose of
paragraph 34(1)(f) being to address issues of national security (Agraira
v. Canada (Public Safety and Emergency Preparedness), [2013] 2 SCR
559, 2013 SCC 36 at paragraphs 76 and 78), membership in an
organization must be defined in the broadest sense (Kanagendren, above,
at paragraph 27; Nassereddine v. Canada (Citizenship and Immigration),
2014 FC 85 at paragraph 49). Thus, the word “member” in paragraph 34(1)(f) of the IRPA
does not require actual or formal membership in an organization (Chiau v.
Canada (Minister of Citizenship and Immigration), [1998] 2 FCR No. 642,
affirmed by Chiau, above at paragraph 57). In her submissions, the
applicant maintains that she should not be considered an MQM member since she
did not demonstrate a level of commitment consistent with that which the MQM
expects of its members, and that she was not a full member, having not sworn an
oath to become a member. However, in both her Basis of Claim Form (BOC) and her
interview with a Canada Border Services Agency (CBSA) officer, the applicant
voluntarily admitted that she was a “senior”
employee of the MQM, and that she participated in the MQM’s political
activities by going door-to-door, distributing pamphlets and encouraging people
to get out and vote during election periods. It was therefore reasonable, in
light of the evidence in the record, for the ID to come to the conclusion it
did.
[14]
In the alternative, the applicant maintains that
the ID erred in concluding that the MQM is an organization that has committed
acts of terrorism. The applicant claims that the ID erred in failing to
distinguish between those acts committed by the MQM, the MQM-H and the MQM-A
that would fall under the definition of terrorism stated in Suresh,
above. Nevertheless, as was stated by the respondent, the evidence in the
record shows that the applicant admitted to being involved in both the MQM and
the MQM-A. It was therefore unnecessary for the ID to make a distinction
between the acts committed by the MQM and the MQM-A.
[15]
In addition, it is evident from the reasons for
decision that the ID studied the objective documentary evidence, and, based on
these documents, it arrived at the conclusion that both the MQM and the MQM-A
had committed acts of terrorism, as defined in Suresh, above. In this
case, given that the applicant admitted—in her BOC Form as well as in her
interview with the CBSA officer—to having been involved in MQM and MQM-A
activities, it was not necessary for the ID to state in its reasons which
terrorist activities were attributed to each organization. An administrative
decision-maker is not required to make an explicit finding on each constituent
element of reasoning leading to its final conclusion (Newfoundland and
Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
[2011] 3 SCR 708, 2011 SCC 62 at paragraph 16; Service
Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses
Association et al., [1975] 1 SCR 382, page 391). The Court
also concurs with the argument of the respondent, which maintains that this
Court has, on several occasions, concluded that it was reasonable for the ID to
determine that the MQM and/or the MQM-A were terrorist organizations, within
the meaning of paragraph 34(1)(f) of the IRPA (NK, above at
paragraph 80; Naeem, above; Mohiuddin, above). Furthermore,
this Court has acknowledged that the mere fact that an organization is not on
the list of terrorist entities within the meaning of the Anti-terrorism Act,
although relevant, is not in itself sufficient grounds to conclude that this
entity is not a terrorist organization within the meaning of
paragraph 34(1)(f) of the IRPA (Anteer v. Canada (Citizenship
and Immigration), 2016 FC 232 at paragraphs 43–47).
VIII.
Conclusion
[16]
The Court finds that the Immigration Division’s
decision is reasonable. Consequently, the application for judicial review is
dismissed.
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