Docket: IMM-4887-15
Citation:
2016 FC 1285
Ottawa, Ontario, November 21, 2016
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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MUHAMMAD NAEEM
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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]
The Applicant, Mr. Muhammad Naeem, is a Convention
refugee. He has a long and complex history of involvement both with Canadian
immigration authorities and this Court. On August 28, 2009, Mr. Naeem was found
to be inadmissible to Canada because of his past membership in organizations that
there are reasonable grounds to believe have engaged in terrorism. His request
for Ministerial relief under the former subsection 34(2) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] was denied on October 12,
2015 by the Respondent, the Minister of Public Safety and Emergency
Preparedness [Minister].
[2]
Mr. Naeem now seeks judicial review of the
Minister’s decision and submits that the Minister failed to properly consider
the “national interest” and perform a balancing of the relevant factors as
articulated in the Supreme Court of Canada’s decision in Agraira v Canada
(Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira]
and as directed in Naeem v Canada (Citizenship and Immigration), 2007 FC
123 [Naeem 2007].
[3]
While the evidence before me demonstrates that
Mr. Naeem has successfully established himself in Canada, there is no basis
upon which this Court can interfere with the Minister’s decision and as a
result, the application for judicial review is dismissed.
I.
Background
[4]
Mr. Naeem is a citizen of Pakistan and a member
of the Mohajir ethnic sub-group. In 1988, while a student at the National
College in Karachi, Pakistan, Mr. Naeem became a member of the All Pakistan
Mohajir Student Organization [APMSO], the student wing of the Mohajir Quami
Movement [MQM]. He was sixteen (16) years old at the time.
[5]
From 1988 to 1990, he was an active member of
the APMSO and served as joint secretary. His duties included attending meetings
with other APMSO leaders and providing assistance and support to other Mohajir
students.
[6]
After graduating from college in 1990, Mr. Naeem
attended the University of Karachi until 1993 and claims to have been only an
ordinary member of the APMSO. He attended meetings and accompanied other APMSO
members to rallies but did not report to anyone.
[7]
In 1992, the MQM split into two (2) factions—the
MQM-Altaf [MQM-A] and the MQM-Haqiqi [MQM-H]. Mr. Naeem remained affiliated
with the MQM-A.
[8]
After the split, the Pakistan government took a
hard stance against the MQM-A. As a result, Mr. Naeem went into hiding from
1993 to 1999. He claims not to have done any work for the APMSO/MQM and MQM-A
and that his only goal was to save his life and survive.
[9]
Mr. Naeem arrived in Canada in March 1999. He
was granted refugee protection on February 21, 2001. He immediately thereafter
applied for permanent residence.
[10]
In March 2002, Mr. Naeem attended an interview with
the Canadian Security Intelligence Service. He was again interviewed in
February 2005, this time, by an immigration officer from Citizenship and
Immigration Canada [CIC] who found that there were reasonable grounds to
believe that Mr. Naeem was inadmissible pursuant to paragraph 34(1)(f)
of the IRPA due to his membership in the MQM/MQM-A.
[11]
On March 4, 2005, Mr. Naeem applied for
Ministerial relief from his finding of inadmissibility. His application was
refused by the Minister on March 14, 2006. As a result, his application for
permanent residence was also refused.
[12]
In May 2006, Mr. Naeem filed an application for
judicial review of the refusal of Ministerial relief and of his permanent
residence. In March 2007, the Federal Court allowed the combined application
for judicial review and ordered the redetermination of both decisions (Naeem
2007).
[13]
In May 2008, Mr. Naeem was again found
inadmissible pursuant to paragraph 34(1)(f) of the IRPA. Mr. Naeem
successfully challenged the inadmissibility finding before this Court and, in
December 2008, his case was sent back for redetermination by a different
officer (Naeem v Canada (Citizenship and Immigration), 2008 FC 1375).
[14]
In August 2009, Mr. Naeem was the subject of
another inadmissibility finding pursuant to paragraph 34(1)(f) of the
IRPA. Although leave was granted, his application for judicial review was
dismissed in November 2010 (Naeem v Canada (Citizenship and Immigration),
2010 FC 1069).
[15]
Meanwhile, Mr. Naeem continued updating his
request for Ministerial relief and application for permanent residence. In
November 2011, the Minister again denied Mr. Naeem’s request for Ministerial
relief. His application for permanent residence was denied later the same
month. The following month, Mr. Naeem sought judicial review of both decisions.
[16]
In March 2012, Mr. Naeem discontinued his
application for judicial review of the decision refusing his application for
permanent residence under the agreement that his application would be re-opened
if this Court granted his application for judicial review regarding the denial
of his request for Ministerial relief.
[17]
In December 2013, the Minister consented to a re-determination
of Mr. Naeem’s request for Ministerial relief, taking into consideration the
guidance of the Supreme Court in Agraira. The application for judicial
review was granted by this Court (Naeem v The Minister of Public Safety and
Emergency Preparedness, (December 12, 2013), Toronto IMM-9386-11 (FC)) and
the matter was referred back for reconsideration.
[18]
In February 2015, Mr. Naeem received a copy of
the briefing note and supporting documentation prepared by the President of the
Canada Border Services Agency [CBSA] for the Minister, recommending that Ministerial
relief be denied. Mr. Naeem provided additional submissions in response to the
draft recommendation.
[19]
In April 2015, Mr. Naeem’s application for permanent
residence on humanitarian and compassionate grounds was refused. Leave to
judicially review the decision was denied by this Court in July 2015.
[20]
On October 12, 2015, the Minister refused to
grant Mr. Naeem’s request for Ministerial relief. This decision underlies this
application for judicial review.
[21]
In September 2016, Mr. Naeem’s application for
judicial review of a decision to deny his application for permanent residence
was allowed by this Court. An immigration officer had refused Mr. Naeem’s application
for permanent residence despite Mr. Naeem’s request that no decision on his
application be made until after this application for judicial review be
determined. The application was allowed on the basis that the officer was
entirely silent on Mr. Naeem’s request to delay the determination of the
permanent residency application (Naeem v Canada (Citizenship and
Immigration), 2016 FC 1073).
II.
The Minister’s Decision
[22]
The Minister adopted the CBSA’s most recent
recommendation that Ministerial relief be denied to Mr. Naeem. The reasons set
out in the CBSA’s briefing note shall therefore be considered to be the reasons
of the Minister (Canada (Public Safety and Emergency Preparedness) v Khalil,
2014 FCA 213 at para 29; Puvanenthiram
v Canada (Public Safety and Emergency Preparedness),
2016 FC 587 at para 11 [Puvanenthiram]; Siddique v Canada (Public
Safety and Emergency Preparedness), 2016 FC 192 at para 25 [Siddique]).
[23]
The briefing note provides an overview of the legislation
enabling Ministerial relief and summarizes the legal test to be applied by the
Minister in deciding whether relief should be granted. It then provides general
background information on the APMSO, the MQM and the MQM-A. After reviewing Mr.
Naeem’s immigration history, the briefing note proceeds to discuss the elements
considered in making the recommendation, including Mr. Naeem’s version of
events, the divergent accounts he has provided throughout the years, the CIC
officer’s 2005 report, prior decisions of the Minister and Mr. Naeem’s 2015 post-disclosure
submissions. The briefing note then provides an assessment of Mr. Naeem’s
application, discussing the evidence weighing against him as well as the
positive factors in his favor.
[24]
Overall, the briefing note concludes that
despite Mr. Naeem’s positive contributions to Canada, Mr. Naeem was “a willing, informed and committed member of the APMSO/MQM
and MQM-A for a period of eleven years”. Additionally, he failed to
demonstrate that it would be contrary to the national interest to exempt him
from inadmissibility for his membership in organizations for which there are
reasonable grounds to believe engaged in terrorism at the time of his
involvement.
III.
Issue
[25]
The determinative issue in this application for
judicial review is whether the Minister’s decision denying Ministerial relief
is reasonable.
IV.
Standard of review
[26]
It is well established, and both parties agree,
that the Minister’s decision to deny relief pursuant to the former subsection
34(2) of the IRPA is a discretionary decision that attracts the standard of
reasonableness (Agraira at para 50; Puvanenthiram at para 20; Siddique
at para 40; Hameed v Canada (Public Safety and Emergency Preparedness),
2015 FC 1353 at para 28 [Hameed]).
[27]
When reviewing a decision on the standard of
reasonableness, the Court is concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process” and “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 [Dunsmuir]).
[28]
Moreover, the Court is not entitled to reweigh
the evidence that was before the Minister given the discretionary nature of the
Minister’s decision. If the Minister has considered and weighed all of the
relevant factors, his decision shall be found to be reasonable (Agraira
at para 91; Afridi v Canada (Public Safety and Emergency Preparedness),
2015 FC 1299 at para 24 [Afridi]).
V.
Analysis
[29]
In Agraira, the Supreme Court of Canada
established a number of legal principles governing applications for Ministerial
relief under the former subsection 34(2) of the IRPA.
[30]
First, the onus is on the applicant for
Ministerial relief to satisfy the Minister that his or her presence in Canada
would not be detrimental to the national interest (Agraira at para 43).
[31]
Second, in determining what is in the “national
interest”, the Minister should be guided by a broad range of factors, including
the factors set out in the CIC guidelines (Agraira at para 87).
They are:
a)
Will the applicant’s presence in Canada be
offensive to the Canadian public?
b)
Have all ties with the regime/organization been
completely severed?
c)
Is there any indication that the applicant might
be benefiting from assets obtained while a member of the organization?
d)
Is there any indication that the applicant may
be benefiting from previous membership in the regime/organization?
e)
Has the person adopted the democratic values of
Canadian society?
[32]
An interpretation of the term “national
interest” that relates predominantly to national security and public safety shall
be considered reasonable if it does not exclude other important considerations
such as those set out in the CIC guidelines or other analogous considerations (Agraira
at para 88).
[33]
Third, humanitarian and compassionate
considerations are more properly considered in the context of an application
pursuant to section 25 of the IRPA. The consideration of personal factors may
be relevant in an application for Ministerial relief to the extent that the
factors may have an impact on the assessment of the applicant’s personal
characteristics for the purpose of determining whether the applicant can be
viewed as a threat to the security of Canada (Agraira at para 84).
[34]
Finally, the determination of which factors are
relevant to the analysis in any given case will depend on the particulars of
the application before the Minister (Agraira at para 87).
[35]
With these legal principles in mind, I shall now
consider Mr. Naeem’s arguments.
[36]
Mr. Naeem argues that the Minister failed to properly
consider the “national interest” and perform any balancing of relevant factors
as directed by the Court in Naeem 2007 at paragraphs 60-65, and as
articulated by the Supreme Court in Agraira. While the Minister
mentioned some positive factors, he presented them in a negative light and
distorted the evidence. The Minister also completely ignored other positive
factors.
[37]
Particularly, Mr. Naeem submits that the
Minister proceeded on the flawed premise that he had been involved in the
APMSO/MQM-A for eleven (11) years, from 1988 until he left Pakistan in 1999.
Mr. Naeem contends that there is no evidence that he was actively involved in
the organization after 1992, when he was forced to go into hiding. He attended
a single meeting while he was in hiding in 1998 wherein the discussion related
to how members were to inform each other if they were arrested. The meeting did
not pertain to any MQM-A activities, merely practical survival in a time of
unlawful arrests.
[38]
Mr. Naeem further submits that the Minister
erred in asserting that “the majority of his
eleven-year membership occurred when he was an adult.” Mr. Naeem states
that he joined the APMSO at the age of sixteen (16) years when he went to
college and continued his involvement at university for two (2) more years,
from the ages of eighteen (18) to twenty (20). He then stopped any meaningful
involvement with the APMSO/MQM and MQM-A after 1992. Mr. Naeem thus considers
that the Minister’s finding that the majority of his eleven-year membership
occurred when he was an adult is not only unreasonable but also unsupported by
the evidence.
[39]
Mr. Naeem also submits that the Minister falsely
equated the persecution he suffered in Pakistan and his arrests at the hands of
the authorities as reflective of his level of involvement in the MQM-A. Mr.
Naeem argues that it is apparent from the country conditions reports in
Pakistan that the Pakistan police frequently arbitrarily detain and torture
people suspected as only casually involved with the MQM-A.
[40]
Moreover, the Minister erroneously assumed that
because violence was committed by the MQM-A, Mr. Naeem would have known about
it. Mr. Naeem considers that the Minister failed to take into account that his
active involvement with the organization ended in 1992 when he went into hiding
and that he was not in a position to be aware of or involved in any way in the
violence perpetrated by the members of the MQM-A. The Minister also
unreasonably discounted the fact that Mr. Naeem was never personally engaged in
any kind of violence and that he is against all forms of violence. Similarly,
the Minister unreasonably disregarded the fact that Mr. Naeem’s past
activities in the organization were social and political in nature and had
nothing to do with violence.
[41]
Mr. Naeem further submits that the Minister should
also have considered the current nature of MQM-A, namely that it is now a
recognized political party in Pakistan and that it is not listed as a terrorist
entity by the Canadian government.
[42]
Finally, Mr. Naeem also argues that the Minister
fettered his discretion and failed to consider relevant personal factors and
evidence, particularly the fact that he has successfully established himself and
integrated into Canada, is a contributing member of society, that he has not
benefited from his membership in the organization, that he is not a danger to
the public and has adopted Canada’s democratic values. Other than a general
statement hinting at the above, the Minister engaged in absolutely no analysis
or balancing of these factors, going against the decision of the Supreme Court
in Agraira, and the direction of the Federal Court in Naeem 2007.
Moreover, the Minister made no mention of the fact that he never engaged in or
condoned violent activities, that his period of active involvement was short
(from 1988-1992), that he was a minor when he joined and was never involved
with MQM-A in Canada.
[43]
The Respondent submits that the Minister properly
exercised his discretion and reasonably found that Mr. Naeem had failed to
demonstrate that his presence in Canada would not be detrimental to the
national interest.
[44]
It is apparent from the decision that the
Minister reasonably considered and balanced the factors relevant to national interest
and that he did not misapprehend or ignore relevant evidence.
[45]
The Minister considered the positive factors
warranting relief against inadmissibility including the fact that Mr. Naeem is
an honest and hardworking person who has successfully established himself in
Canada, contributes to the economic prosperity of Canada and has adopted
Canada’s democratic values. The Minister also noted Mr. Naeem’s statement that he
ceased being a member of the MQM-A when he arrived in Canada, he has never been
arrested and does not pose a threat to the security of Canada and that consideration
should be given to the current legitimate status of the MQM-A in the Pakistani
government. The Minister also considered Mr. Naeem’s statement that he was
never involved in any violent activity, never carried a weapon and never
condoned violence. However, the Minister equally found that Mr. Naeem was a “willing, informed and committed” member of the
APMSO/MQM and the MQM-A for a period of eleven (11) years. After considering
all the relevant factors in the exercise of his discretion, the Minister concluded
that the positive factors did not outweigh Mr. Naeem’s voluntary, continuous
and informed involvement and commitment to organizations that there are
reasonable grounds to believe engaged in acts of terrorism at the time of his
involvement.
[46]
Contrary to Mr. Naeem’s submissions, the Minister’s
decision is not based on the mistaken assumption that Mr. Naeem was “actively”
involved in the APMSO/MQM and MQM-A for eleven (11) years. Throughout the
decision, the Minister explicitly acknowledges Mr. Naeem’s argument that he
was only actively involved with the APMSO/MQM from 1988 until 1992 and that he was
only sixteen (16) years old when he first joined the APMSO/MQM. However, the
Minister decided that given that Mr. Naeem had attended meetings with MQM members
and lived with other MQM members while he was in hiding from 1992/3-1999, he still
“maintained a relationship and his membership with the
MQM-A” and therefore, considered “that his
membership was continuous, ending in March 1999.” Upon review of the Certified
Tribunal Record, and in particular the notes of the interviews conducted on
January 23, 2008, July 15, 2008 and June 2, 2009, it was reasonable for the
Minister to conclude that Mr. Naeem was a member of the MQM-A continuously
until 1999.
[47]
The Minister also noted that Mr. Naeem had
voluntarily joined and maintained his membership with the APMSO/MQM and the
MQM-A. To support his conclusion, the Minister noted Mr. Naeem’s statement that
he had sought out and voluntarily joined the APMSO/MQM when he attended college
in 1988 and that he had maintained his membership while at university. He also
observed that Mr. Naeem had chosen to stay with the MQM-A, instead of the
MQM-H, when the MQM split into two (2) factions and that he continued his
membership with the MQM-A until he left Pakistan in 1999.
[48]
The Minister also found that Mr. Naeem
demonstrated a strong commitment to the APMSO and the MQM-A by maintaining his
membership through eleven (11) years. In making this finding, the Minister noted
that early in his membership with the APMSO/MQM, Mr. Naeem was warned by
the police to cease his involvement in the organization after being arrested,
detained and beaten while in detention. The Minister reasonably concluded that the
fact Mr. Naeem had remained a member of the MQM-A, despite police warnings, his
arrests and beatings, the many killings of other MQM-A members, the
ever-increasing danger and fear for his personal safety, was indicative of his
loyalty and commitment to the organizations. The Minister also noted that despite
being beaten, hospitalized and forced to go into hiding, Mr. Naeem did not
see the point of trying to convince the authorities that he was no longer an
active member.
[49]
Moreover, the Minister did not infer from Mr.
Naeem’s multiple arrests that he necessarily held a prominent position, in
spite of Mr. Naeem’s submission to that effect. However, the Minister did infer
that Mr. Naeem was aware of the violence committed by the MQM and MQM-A,
despite his statement to the contrary. The Minister concluded that Mr. Naeem
could not have been unaware of the range of violence and terrorist activities perpetrated
by the MQM and MQM-A, given the length of time he resided in Karachi in the
1990’s which saw high levels of violence due to the fighting between the MQM-A
and the MQM-H, the protracted period during which he was member and his
awareness of the status of the MQM-A as described by the details he provided of
the meeting or meetings he attended while in hiding. Not only is the Minister’s
inference reasonable, it is supported by the statement made by Mr. Naeem in his
March 2005 Ministerial relief submissions, whereby he indicated that he “abhorred the violence which the MQM sometimes resorted to”
but that he was in favour of the aims and goals of the organization. It is also
supported by the jurisprudence of this Court which has found that it is
reasonable for the Minister to infer an applicant’s knowledge of the MQM’s
violence by virtue of living in a major city where violence was commonplace (Siddique
at paras 59-60; Afridi at para 33).
[50]
Likewise, the Minister did not discount the fact
that the reason Mr. Naeem joined the organization was connected to the
discrimination that Mohajirs were subjected to in terms of educational and
employment opportunities and that his past activities in the organization were
social and political in nature and did not involve any perpetration of
violence. Despite being positive factors in the overall assessment, the
Minister nonetheless concluded that Mr. Naeem was a member of the MQM and MQM-A
and that his actions had nonetheless contributed to the organizations as a
whole.
[51]
I also find no merit to Mr. Naeem’s argument
that the Minister fettered his discretion by failing to consider certain
positive factors, such as:
1)
he has successfully established himself and
integrated into Canada;
2)
he is a contributing member of Canadian society;
3)
he has not benefited from his membership in
MQM-A;
4)
he is not a danger to the public and has adopted
the democratic values of Canada;
5)
he is a Convention refugee; and,
6)
he never participated in violent activities of
MQM-A.
[52]
Upon review of the decision and as shown above, the
Minister clearly considered factors 1, 2, 4, 5 and 6. The Minister properly
noted Mr. Naeem’s personal situation and circumstances, his alleged democratic
values, establishment, hard-working nature, the extent and duration of his
relationship with the MQM-A and the discontinuance of his membership and interaction
with the MQM-A since his arrival in Canada. The only outstanding factor relates
to whether the Minister considered whether Mr. Naeem benefited from his
membership in the MQM-A. While the Minister is silent on this issue, I do not
believe this to be determinative such as to render the Minister’s decision
unreasonable.
[53]
Mr. Naeem argues that when “balancing” the
relevant factors, the Minister is required to set out in detail how he weighed
national security and public safety against the other factors. However, the
jurisprudence of this Court is such that so long as the Minister identifies
factors other than public safety and national security in his analysis, he is
not required to provide reasons why certain factors were afforded more weight (Siddique
at para 84).
[54]
Mr. Naeem is essentially arguing that the
Minister should have afforded more weight to his current activities in Canada,
rather than those in Pakistan. However, this Court has found that it is
reasonable for the Minister to give greater weight to past actions of an applicant,
as explained in paragraph 35 of Afridi:
[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.
[55]
Having concluded that the Minister reviewed and
considered all the relevant factors based on the record before him, I am of the
view that it was open to the Minister to decide which factors would guide the
exercise of his discretion and how much weight he would give them. In this case,
the Minister concluded that he was placing more weight on the nature and level
of commitment Mr. Naeem demonstrated to organizations for which there are
reasonable grounds to believe engaged in violence and terrorist activities.
[56]
At the hearing, I expressed concern that the
grounds for the inadmissibility finding should not automatically become the
basis for the denial of the Ministerial relief. As Justice Phelan noted in Soe
v Canada (Public Safety and Emergency Preparedness), 2007 FC 461 at paragraph
34 and as was reiterated in both Hameed and Afridi, treating past
membership of an organization for which there are reasonable grounds to believe
has engaged in terrorism as determinative of an application for Ministerial
relief would render the exercise of discretion meaningless. However, the
granting of Ministerial relief is ultimately a discretionary balancing exercise
by the Minister. While the competing factors might have been weighed differently,
it is not the role of this Court to reweigh the evidence that was before the
Minister when assessing the reasonableness of the Minister’s exercise of
discretion under the former subsection 34(2) of the IRPA.
[57]
Consequently, I find the Minister’s decision to
be justified, transparent and intelligible and within the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir
at para 47).
[58]
As a result, the application for judicial review
is dismissed. The parties did not propose a certified question and none arises.
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