Date: 20080605
Docket: IMM-2399-07
Citation: 2008 FC 701
Edmonton, Alberta, June 5, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MOHAMMAD K. DAUD
also known to Immigration as
MOHAMMAD KHALID DAUD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for leave for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act (the Act) of a decision dated May 28, 2007 by an
immigration officer (the officer) in which the applicant was found to be
inadmissible for permanent residence by reason of being a member of a terrorist
organization pursuant to s. 34(1)(f) of the Act.
[2]
The
applicant is a citizen of Pakistan who left the country in
April of 1996, filed a refugee claim in Canada on May 15,
1996 and was granted refugee status on July 23, 1997.
[3]
The
applicant admitted his membership in the Muttahida Qaumi Movement - Altaf (MQM-A)
and detailed his activities as a member of this group during a May 12, 1998
interview with the Canadian Security and Intelligence Service (CSIS). In his
Personal Information Form, the applicant disclosed his political membership and
activities in Pakistan since 1985.
[4]
In
his decision, the officer indicated that there were reasonable grounds to
believe that the MQM-A had engaged in terrorist activities based on objective
documentary evidence. Accordingly, the applicant was found inadmissible for permanent
residence.
STANDARD OF REVIEW
[5]
In
determining the appropriate standard of review in a given case, reasonableness
or correctness, the Supreme Court of Canada, in Dunsmuir v. New
Brunswick,
2008 SCC 9, at para. 62, instructed that before engaging in a de novo
standard of review analysis, courts should first “ascertain whether the
jurisprudence already determined in a satisfactory manner the degree of defence
to be accorded with regard to a particular category of question.” The standard
of review applicable to a determination of whether an organization is one for which
there are reasonable grounds to believe engages, has engaged, or will engage in
acts of terrorism pursuant to s. 34(1)(f) has been found to be that of
reasonableness (Jalil v. Canada (Minister of Citizenship and Immigration),
2007 FC 568, [2007] F.C.J. No. 763 (QL), at para. 15; Jalil v. Canada (Minister of
Citizenship and Immigration), 2006 FC 246, [2006] F.C.J. No. 320 (QL),
at paras. 19-20; Kanendra v. Canada (Minister of Citizenship and
Immigration), 2005 FC 923, [2005] F.C.J. No. 1156 (QL), at para. 12).
[6]
Thus,
the standard of review applicable to the present case remains that of
reasonableness. Accordingly, the analysis of the officer’s decision will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] […] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at para.
47).
ANALYSIS
[7]
The
crux of the present case involves determining whether the officer committed a
reviewable error when he concluded that the applicant was inadmissible on
security grounds for being a member of a terrorist organization pursuant to s.
34(1)(f) of the Act.
[8]
I
note at the outset that the applicant was granted refugee status and thus was
found to face persecution should he be returned to Pakistan. Therefore,
any subsequent finding of inadmissibility should be carried out with prudence,
and established with the utmost clarity. I find the comments of my colleague
Madam Justice Carolyn Layden-Stevenson in Alemu v. Canada (Minister of
Citizenship and Immigration), 2004 FC 997, [2004] F.C.J. No. 1210 (QL),
at para. 41 particularly instructive:
An exclusion finding is extremely
significant to an applicant. Caution must be exercised to ensure such findings
are properly made. The court will not substitute its opinion for that of the
decision-maker when the analysis and basis for the decision are reasonable.
That is not the situation here. A finding of exclusion must provide some basis
for the determination regarding the nature of the group and the determination
regarding an applicant's membership in the group. Failure to address both and
to provide a basis for both, in my view, yields a result that falls far short
of being reasonable.
[9]
Given
that the applicant admitted to being a member of the MQM-A organization, what
is to be reviewed by this Court is the officer’s determination that the MQM-A
is “an organization that there are reasonable grounds to believe engages, has
engaged or will engage in acts referred to in paragraph (a), (b) or (c)”
(s.34(1)(f) of the Act).
[10]
Section
33 of the Act indicates that the facts constituting inadmissibility under
section 34 include facts arising from omissions and, unless otherwise provided,
are determined on a standard of “reasonable grounds to believe.” The standard "reasonable
grounds to believe" is met when there is more than mere suspicion, but
less than a balance of probabilities, based on credible evidence (Thanaratnam
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 122, [2005]
F.C.J. No. 587, (QL), at para. 22).
[11]
Subsequently,
in Jalil v. Canada (Minister of
Citizenship and Immigration), 2007 FC 568, [2007] F.C.J. No. 763 (QL),
at para. 18, Deputy Justice Max Teitelbaum held that “the assessment of whether
there are reasonable grounds to believe that an organization has engaged in
acts of terrorism is a two-step analysis”. The first step involves a factual
determination of whether there are reasonable grounds to believe that the
organization in question committed the acts of violence attributed to it. At
the second step of the analysis, a determination is made as to whether those
acts constitute acts of terrorism. The officer must provide the definition of
terrorism relied upon and explain how the listed acts meet that definition (Jalil
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 246, [2006] F.C.J. No. 320 (QL), at
para. 32).
[12]
The
applicant challenges the officer’s findings at both steps outlined above and
further challenges the officer’s decision on the ground that he failed to
consider whether the MQM-A, as an organization, engaged in acts of
terrorism.
[13]
With
respect to the first step, the officer examined the documentary evidence
indicating that the MQM-A committed acts of violence against the civilian
population, including journalists and other political groups during the period
in which the applicant was a member. This documentation revealed that the
organization has been accused of being involved in acts of murder, torture, and
general violence accompanying its political activities.
[14]
With
respect to the related issue of whether the MQM-A, as an organization,
engaged in acts of terrorism, the applicant submits that violence was not part
of MQM-A’s objectives. While there is no legal requirement for evidence that
the organization “sanctioned or approved” of the acts forming part of the s.
34(1)(f) analysis, the officer must assess whether there is enough evidence to
establish that they were indeed sanctioned (Jalil v. Canada (Minister of
Citizenship and Immigration), 2007 FC 568, [2007] F.C.J. No. 763 (QL),
at para. 38).
[15]
The
applicant submits that the officer could not conclude that MQM-A engaged in violence
because it did not form part of the organization’s objectives. I disagree. This
determination is a factual one, based on the documentary evidence which
involves not only the statements of the leadership or an organization’s members
but also their actions. The analysis does not lend itself well to a simple
tally of members who openly support violent acts; however, at some point, the
magnitude and frequency of violent tactics employed by the organization in
question will make it difficult to classify the perpetrators as merely rogue
members acting outside the will of the group.
[16]
The
officer examined documentary evidence emanating from sources such as Amnesty
International, the UK Home Office, and the US Department of Justice, which led
him to conclude that instances of killing and torture are a “continuous and
regular part” of the MQM-A organization. Further, the officer noted an Amnesty
International Report entitled “Pakistan: Human rights crisis in Karachi”
(February 1996) which stated that “Despite protestation by MQM leader Altaf
Hussain that the MQM does not subscribe to violence, there is overwhelming
evidence and a consensus among observers in Karachi that some MQM party members
have used violent means to further their political ends”. Given the evidence
before the officer, I am unable to conclude that his determination that MQM-A
committed violent acts, including murder and torture, was unreasonable.
[17]
As
pertains to the second step, the case law reveals that the evaluating officer
must refer to the specific definition of terrorism used and analyze how the
acts cited above fit within it (Jalil v. Canada (Minister of
Citizenship and Immigration), 2006 FC 246, [2006] F.C.J. No. 320 (QL), at
para. 32; Ali v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1174, [2004] F.C.J. No. 1416
(QL), at paras. 63-64. The officer made reference to s. 83.01 of the Criminal
Code of Canada, as well as the annexed list of treaties to the
United Nations Convention for the Suppression of the Financing of Terrorism
as fundamental guidelines in his analysis. Further, he reproduced the
definition of terrorism provided by the Supreme Court of Canada in Suresh v.
Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3, [2002] S.C.J.
No. 3 (QL), at para. 98 which indicates that terrorism includes any “act
intended to cause death or serious bodily injury to a civilian, or to any other
person not taking an active part in the hostilities in a situation of armed
conflict, when the purpose of such act, by its nature or context, is to intimidate
a population, or to compel a government or an international organization to do
or to abstain from doing any act”.
[18]
I
note that in Naeem v. Canada (Minister of
Citizenship and Immigration), 2007 FC 123, [2007] F.C.J. No. 173 (QL),
at para. 46, Madam Justice Dawson correctly emphasized the need to properly and
explicitly characterize the acts in question as terrorism: “[a]cts such as
kidnapping, assault and murder are undoubtedly criminal, but are not
necessarily acts of terrorism. It was incumbent on the officer to explain why
she viewed them to be terrorist acts.” The officer in the present case
followed this jurisprudential guidance and stated that MQM-A’s activities,
including torture and execution of political opponents and journalists, was carried
out in furtherance of the organization’s political goals.
[19]
According
to the applicant, the officer misconstrued the evidence which showed general
political violence in Pakistan by all political
parties. However, in my view, the existence of general violence does not
preclude a determination that an organization engages in terrorism. The
existence of generalized violence is part of the context within which the
officer conducts his analysis, but is not dispositive of the end determination.
Indeed, terrorist acts are committed during an array of country conditions
ranging from periods of relative peace to those of widespread strife and
conflict.
[20]
The
applicant further argues that the officer misconstrued the evidence relating to
Citizenship and Immigration Canada (CIC) and CSIS. Specifically, he refers to
a report dated February 1, 1999, prepared by CSIS which indicated that the
applicant was “cooperative and forthcoming” and a security memorandum dated
July 26, 2001, which states that “His [the applicant’s] history, first with the
APMSO [All Pakistan Mohajir Student Organization] and later with the MQM in
Pakistan, indicates that he is very involved with the cause of the Mohajirs,
however, nothing indicates he has personally been involved in violent or
terrorist activities”. I note firstly, that the applicant’s cooperative and
forthcoming behaviour, while laudable is irrelevant to the present matter
before this Court. Second, as stated by my colleague Justice Pierre Blais in Omer
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 478, [2007] F.C.J. No. 642 (QL),
at para. 11 “[…] the issue of complicity is irrelevant to a determination
under paragraph 34(1)(f) of the Act, which refers strictly to the notion of
membership in the organization.”
[21]
Accordingly,
I am unable to conclude that the officer’s analysis with respect to the second
step was unreasonable. To the contrary, the “decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir, above, at para. 47).
[22]
For
the preceding reasons, this application for judicial review shall be dismissed.
JUDGMENT
THIS COURT
ORDERS that the present application for judicial
review is dismissed.
“Danièle Tremblay-Lamer”
ANNEX
|
Immigration
and Refugee Protection Act, 2001, c. 27.
[…]
Minister
of Citizenship and Immigration
4.
(1) Except as otherwise provided in this section, the Minister of Citizenship
and Immigration is responsible for the administration of this Act.
Designated
Minister
(1.1)
The Governor in Council may, by order, designate a minister of the Crown as
the Minister responsible for all matters under this Act relating to special
advocates. If none is designated, the Minister of Justice is responsible for
those matters.
Minister
of Public Safety and Emergency Preparedness
(2)
The Minister of Public Safety and Emergency Preparedness is responsible for
the administration of this Act as it relates to
(a)
examinations at ports of entry;
(b)
the enforcement of this Act, including arrest, detention and removal;
(c)
the establishment of policies respecting the enforcement of this Act and
inadmissibility on grounds of security, organized criminality or violating
human or international rights; or
(d)
determinations under any of subsections 34(2), 35(2) and 37(2).
Specification
(3)
Subject to subsections (1) to (2), the Governor in Council may, by order,
(a)
specify which Minister referred to in any of subsections (1) to (2) is the
Minister for the purposes of any provision of this Act; and
(b)
specify that more than one Minister may be the Minister for the purposes of
any provision of this Act and specify the circumstances under which each
Minister is the Minister.
Publication
(4)
Any order made under subsection (3) must be published in Part II of the
Canada Gazette.
2001,
c. 27, s. 4; 2005, c. 38, s. 118; 2008, c. 3, s. 1.
[…]
Designation
of officers
6.
(1) The Minister may designate any persons or class of persons as officers to
carry out any purpose of any provision of this Act, and shall specify the
powers and duties of the officers so designated.
Delegation
of powers
(2)
Anything that may be done by the Minister under this Act may be done by a
person that the Minister authorizes in writing, without proof of the
authenticity of the authorization.
Exception
(3)
Notwithstanding subsection (2), the Minister may not delegate the power
conferred by subsection 77(1) or the ability to make determinations under
subsection 34(2) or 35(2) or paragraph 37(2)(a).
[…]
Security
34.
(1) A permanent resident or a foreign national is inadmissible on security
grounds for
(a)
engaging in an act of espionage or an act of subversion against a democratic
government, institution or process as they are understood in Canada;
(b)
engaging in or instigating the subversion by force of any government;
(c)
engaging in terrorism;
(d)
being a danger to the security of Canada;
(e)
engaging in acts of violence that would or might endanger the lives or safety
of persons in Canada; or
(f)
being a member of an organization that there are reasonable grounds to
believe engages, has engaged or will engage in acts referred to in paragraph
(a), (b) or (c).
Exception
(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.
|
Loi
sur l'immigration et la protection des réfugiés, 2001, ch. 27.
[…]
Compétence
générale du ministre de la Citoyenneté et de l’Immigration
4.
(1) Sauf disposition contraire du présent article, le ministre de la
Citoyenneté et de l’Immigration est chargé de l’application de la présente
loi.
Ministre
désigné
(1.1)
Le gouverneur en conseil peut, par décret, désigner tout ministre fédéral
qu’il charge des questions relatives à l’avocat spécial dans le cadre de la
présente loi; à défaut de désignation, le ministre de la Justice en est
chargé.
Compétence
du ministre de la Sécurité publique et de la Protection civile
(2)
Le ministre de la Sécurité publique et de la Protection civile est chargé de
l’application de la présente loi relativement :
a)
au contrôle des personnes aux points d’entrée;
b)
aux mesures d’exécution de la présente loi, notamment en matière
d’arrestation, de détention et de renvoi;
c)
à l’établissement des orientations en matière d’exécution de la présente loi
et d’interdiction de territoire pour raison de sécurité ou pour atteinte aux
droits humains ou internationaux ou pour activités de criminalité organisée;
d)
à la prise des décisions au titre des paragraphes 34(2), 35(2) ou 37(2).
Précisions
du gouverneur en conseil
(3)
Sous réserve des paragraphes (1) à (2), le gouverneur en conseil peut, par
décret :
a)
préciser lequel des ministres mentionnés à ces paragraphes est visé par telle
des dispositions de la présente loi;
b)
préciser que plusieurs de ces ministres sont visés par telle de ces
dispositions, chacun dans les circonstances qu’il prévoit.
Publication
(4)
Tout décret pris pour l’application du paragraphe (3) est publié dans la
partie II de la Gazette du Canada.
2001, ch. 27,
art. 4; 2005, ch. 38, art. 118; 2008, ch. 3, art. 1.
[…]
Désignation
des agents
6.
(1) Le ministre désigne, individuellement ou par catégorie, les personnes
qu’il charge, à titre d’agent, de l’application de tout ou partie des
dispositions de la présente loi et précise les attributions attachées à leurs
fonctions.
Délégation
(2)
Le ministre peut déléguer, par écrit, les attributions qui lui sont conférées
par la présente loi et il n’est pas nécessaire de prouver l’authenticité de
la délégation.
Restriction
(3)
Ne peuvent toutefois être déléguées les attributions conférées par le
paragraphe 77(1) et la prise de décision au titre des dispositions suivantes
: 34(2), 35(2) et 37(2)a).
[…]
Sécurité
34.
(1) Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
a)
être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute
institution démocratique, au sens où cette expression s’entend au Canada;
b)
être l’instigateur ou l’auteur d’actes visant au renversement d’un
gouvernement par la force;
c)
se livrer au terrorisme;
d)
constituer un danger pour la sécurité du Canada;
e)
être l’auteur de tout acte de violence susceptible de mettre en danger la vie
ou la sécurité d’autrui au Canada;
f)
être membre d’une organisation dont il y a des motifs raisonnables de croire
qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
Exception
(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.
|
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