Date: 20081023
Docket: IMM-266-08
Citation: 2008 FC 1192
Toronto, Ontario, October 23, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ZUBAIR
AFRIDI
Applicant
and
MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS,
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a
decision of the Minister of Public Safety and Emergency Preparedness
(Minister) dated December 14, 2007 (Decision) and communicated to the Applicant
on January 8, 2008, which refused the Applicant’s request for ministerial
relief pursuant to s. 34(2) of the Act because of his membership in the Mohajir
Quami Movement (MQM).
BACKGROUND
[2]
The
Applicant was born in Hyderabad, Pakistan. He is part
of the Mohajir minority that migrated from India during the
partition of the Indian subcontinent.
[3]
The
Applicant has strong political ties to the MQM. His cousin was an organizer of
the MQM Hyderabad and a member of the National Assembly, while the Applicant’s
grandfather is a member of the MQM senior’s committee in Mirpurkhas. The
Applicant’s sisters are also active members of the MQM.
[4]
The
Applicant had an interest in politics in his youth and read a substantial
amount of political literature. He joined the All Pakistan Mohajir Student
Organization (APMSO) in 1990 while going to college. He obtained his Bachelor
of Science degree from Sindh University in Pakistan.
[5]
In
June 1992, the Muslim League decided to split the MQM and encouraged a
breakaway faction. With the party under siege, the leaders and workers of the MQM
went underground. During this time the Applicant had the following duties:
1)
The
organization of an emergency meeting of the senior’s Mohajir committee;
2)
The
secret distribution of party literature;
3)
The
arrangement of secret places to hide party members;
4)
The
arrangement of protests against the Government.
[6]
The
Applicant was arrested by intelligence officers on August 14, 1992, which was
the day of a demonstration of women protesting against the arrests and killings
of innocent Mohajirs. The Applicant was interrogated and his family had to bribe
the intelligence and police officers in order to obtain his release.
[7]
The
Applicant then began working for Fateh International Chemical (Pvt.) Ltd. in
November 1992. By 1996, he was the chief chemist for the company and was sent
to Bangladesh where he
stayed for a month and a half. Upon the Applicant’s return to Hyderabad, he worked on
the 1997 election for the MQM. The Applicant’s house was raided and the police
informed his family that they knew the Applicant had been involved in the 1993
and 1997 elections working for MQM candidates. After the raid of the Applicant’s
house, Fateh International Chemical arranged for him to return to Bangladesh again, which
he did promptly. However, he returned to Pakistan in May 1997.
[8]
In
1998, the Applicant applied to work for a paint company called I.C.I. and attended
an interview with the company in Lahore, Pakistan. In Lahore, the
Applicant was stopped and detained at his hotel by police. They accused him of
being a MQM worker who had come to Lahore to hide out. The
Applicant called his boss, who sent someone to bribe the police to release him.
Because of the troubles in Pakistan, the Applicant’s boss offered
to obtain visas for the UK, Japan and Canada for the Applicant to do
feasibility reports for the company.
[9]
In
September 1998, the Applicant was arrested by police while sleeping at a
friend’s house. Following his arrest, the Applicant promised to become an
informer. He believed that the police would kill him if he refused. The
Applicant’s family had to bribe the police to release him after three days.
After this arrest, the Applicant went to Karachi to stay at
his sister’s home, and then decided to leave Pakistan permanently
for one of the three countries for which his boss could obtain a visa.
[10]
The
Applicant felt that Canada was the only country where he could apply for asylum
and live legally.
[11]
On
September 9, 1998, he left Pakistan and entered Vancouver on September
10, 1998. By the following week, the Applicant had made his way to Toronto, where a
friend told him how to seek protection.
[12]
The
Applicant married a Canadian woman in January 2002. He has an 8-year-old
stepson and the family has purchased a house in Toronto.
[13]
The
Applicant has worked in Canada for the last five years. He started out as
a factory worker with Stakepole and began working at Toyota in May, 2000
as a salesperson. He is presently with Toyota as an Assistant
Sales Manager with a projected salary in excess of $95,000 for this year. The
Applicant is also an instructor at the Automotive Sales College of Canada where
he inspires unemployed and under-employed persons to better their lives
financially.
[14]
The
Applicant is afraid to return to Pakistan as he believes he will
be persecuted and mistreated. He is concerned about the safety of his family
and believes that the security forces in Pakistan want to kill
him.
DECISION UNDER REVIEW
[15]
An
immigration officer wrote to the Applicant on January 8, 2008 informing him that
he was a person described in ss. 34(1)(f) of the Act and was, therefore,
inadmissible to Canada based on his membership in the MQM. The MQM is designated
as “an organization that there are reasonable grounds to believe engaged, has
engaged or will engage in acts of terrorism.”
[16]
The
Minister was not satisfied that the Applicant’s presence in Canada would not be
detrimental to the national interest. Therefore, the Applicant’s ministerial
relief application was refused.
[17]
Based
upon the finding that the Applicant was inadmissible under ss. 34(1)(f)
of the Act, and following the refusal of his request for Ministerial relief,
the Applicant was denied permanent residence on January 8, 2008.
ISSUES
[18]
The
Applicant has raised the following issues:
1)
What is
the standard of review of the Minister’s decision on an application for
Ministerial relief?
2)
What are
the reasons for the Decision in this case?
3)
Did the
Minister err in law in failing to properly consider the “national interest”?
4)
Did the
Minister err in law by relying on patently unreasonable findings of fact, or by
ignoring evidence, or by making unreasonable inferences?
5)
Did the
Minister improperly fetter his discretion when assessing all of the facts of
the Applicant’s application?
STATUTORY PROVISIONS
[19]
The
following provisions of the Act are applicable in these proceedings:
|
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.
|
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.
|
STANDARD OF REVIEW
[20]
In
Dunsmuir v. New Brunswick, 2008 SCC 9,
the Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review” (Dunsmuir at para.
44). Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[21]
The Court in Dunsmuir also held that the standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to the particular question before the court is
well-settled by past jurisprudence, a reviewing court may adopt that standard.
Only where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[22]
Naeem v. Canada (Minister of Citizenship and Immigration),
[2007] F.C.J. No. 173 (F.C.) at paragraphs 39-40 holds that the standard of
review on an application under s. 34 of the Act is reasonableness simpliciter.
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review applicable
to this issue to be reasonableness. When reviewing a decision on the standard
of reasonableness, the analysis 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 at para. 47). Put another way, the Court should
only intervene if the Decision is unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
Briefing Notes
[23]
Both
the Applicant and the Respondent agree that the briefing notes are the “reasons”
for the Decision, as they formed the basis of the Decision, and no other
reasons were given: Kanaan v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J. 301 and Miller v. Solicitor General,
[2006] F.C.J. No. 1164.
The Applicant
Evidence
Evaluation
[24]
The
Applicant submits that the briefing notes do not produce or consider all of the
relevant evidence. He says that an assessment of whether the Applicant’s entry
into Canada would be
offensive to the Canadian public based on the Applicant’s activities within the
prohibited organization should have been done. The Applicant contends that no
evidence was before the Minister’s delegate that he would be a danger to the
public, especially since the interviewing officer found no evidence to suggest
that the Applicant posed a security threat to Canada.
[25]
The
Applicant submits that the Minister did not give adequate consideration to the
Applicant’s letter which highlighted his humanitarian considerations, including
the interest of the child involved in this case, his establishment in Canada, and his
adoption of “the democratic values of Canadian society as per the table in the
Minister’s Guidelines.”
[26]
The
Applicant submits that he has demonstrated he is a law-abiding member of society
who has severed all ties with the MQM since 2001, despite his peaceful role in
that organization. He maintains he does not represent a danger to the public,
has not been involved in violence, has no criminal record, denounces the use of
violence, is a Convention refugee and should attract humanitarian and compassionate
considerations, including the best interests of his child that should have been
taken into account.
[27]
The
Applicant suggests that the Officer’s notes are based upon unreasonable
inferences: that the Applicant’s family involvement in the MQM equates to the
Applicant’s being committed to the MQM; or that the Applicant would be aware of
any alleged party-sponsored violence or acts of terrorism committed by the MQM.
The Applicant cites and relies upon Kanaan v. Canada (Minister of
Citizenship and Immigration), 2008 F.C.J. No. 301 at paragraph 8:
I therefore conclude that the Minister’s
decision was patently unreasonable in that it failed to take into account
evidence and factors presented in the Applicant’ submissions of March 31, 2006
and July 25, 2006. The decision seems to have turned on the simplistic view
that the presence in Canada of someone who at some time
in the past may have belonged to a terrorist organization abroad can never be
in the national interest of Canada. I will therefore set aside
the Minister’s decision and refer the matter back to him for reconsideration.
National Interest
[28]
The
Applicant submits that when assessing the “national interest,” a decision maker
must make a complete evaluation and take into consideration the totality of the
relevant issues and factors referred to in the Minister’s guidelines. The
Minister “is mandated to consider whether, notwithstanding the applicant’s
membership in a terrorist organization, it would be detrimental to the national
interest to allow the applicant to stay in Canada” when looking at an inquiry
under sub-section 34(2): Ali v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1416 at paragraph 42.
[29]
The
Minister’s failure in the present case to refer to, and consider, all of the
critical facts suggests that the Decision was made without full regard to the
evidence. The Applicant argues at paragraph 27 of his written memorandum as
follows:
The Applicant submits that Mr.
Jolicoeur’s analysis is woefully inadequate because it does not address key
factors relevant to the determination of whether his admission to Canada would
be “detrimental to the national interest.” Rather, it equates the
national interest with membership in an allegedly terrorist organization and as
a result is a fettering of discretion. By failing to address the issue before
him, and by failing to consider all of the factors relevant to such an
analysis, the Minister erred in law. If Mr. Jolicoeur’s analysis is accepted,
then s. 34(2) of the Act becomes superfluous. If the mere fact that a person
was in the past associated with the MQM is sufficient to warrant a negative
feeling, then the section is deprived of all meaning. In Soe v.
Canada, supra [2007 F.C.J. 620 (Soe)] a case in which the Briefing
Note to the Minister similarly recommended that relief not be granted on the
grounds that the Applicant had engaged in terrorist activity and that
accordingly his presence in Canada was detrimental to the “national interest,”
this Court noted:
33. The Briefing Note goes on to observe
that there are no compelling reasons to grant protection or permanent
residence. The factors examined are largely those related to a close connection
to Canadian society, including jobs and family in the country.
34. The difficulty with this analysis is
that it renders the exercise of discretion meaningless. It is tantamount to
saying that an individual who commits an act described in s. 34(1) cannot
secure Ministerial discretion because they committed the very act that confers
jurisdiction on the Minister to exercise discretion under s. 34(2).
[30]
The
Applicant also suggests that the Minister erred under the national interest
analysis by not examining the five questions in Appendix D of the IP10
Refusal of National Security Cases/Processing of National Interest Requests
Guidelines (Guidelines):
1)
Will the
applicant’s presence in Canada be offensive to the Canadian
public?
2)
Have all
ties with the regime/organization been completely severed?
3)
Is there
any indication that the applicant might be benefiting from assets obtained
while a member of the organization?
4)
Is there
any indication that the applicant might be benefiting from previous membership
in the regime/organization?
5)
Has the
person adopted the democratic values of Canadian society?
The Respondent
Evidence
Evaluation
[31]
The
Respondent argues that the Minister referred to and considered all of the
“critical facts,” as all of the major points in issue were addressed in the
briefing notes. The Respondent relies upon Miller v. Solicitor General and Minister
of Public Safety and Emergency Preparedness 2006 FC 912 at paragraph 83 as
follows:
Although the applicant may disagree with
the weight assigned in the memorandum to the factors she considered to be the
more important, or with the extent to which certain points were developed, she
has fallen short of demonstrating that the memorandum did not “address” the
“major points in issue” (Via Rail Canada Inc. v. National Transportation
Agency et al. (2000), 193 D.L.R. (4th) 357, [2000] F.C.J. No.
1685 (F.C.A.) at paragraph 22…
In my view, the applicant has not
demonstrated that the Minister has failed to “consider and weight” the
“patently relevant factors” so as to render patently unreasonable her exercise
of discretion.
National Interest
[32]
The
Respondent notes that the Minister has to take into account many different
considerations in his analysis, including the concept of “national interest,” which
includes domestic and international interests and obligations. The Respondent again
relies upon Miller at paragraph 73, for the following:
Subsection 34(2) of the IRPA simply
indicates that the applicant’s burden was to satisfy the Minister that her
“presence in Canada would not be detrimental to the national interest”. The
broad language used in subsection 34(2) speaks to Parliament’s intention that
the Minister be free to take into account a wide range of factors in exercising
her discretion. This is consistent with the guidelines.
[33]
The
Respondent suggests that the core of the Decision is that Canada cannot
harbour individuals who have admitted to assisting organizations engaged in
terrorist acts, as this would be contrary to the country’s interests. This
determination, in turn, must be given the broadest of deference and the most
minimal of interference.
[34]
The
Respondent argues that the Minister did not err by not explicitly addressing
the questions in Appendix D of the Guidelines. The questions do not need to be
addressed in the reasons for a decision, and their applicability depends upon
the facts of each case. As well, the Guidelines are intended to be of
assistance to decision-makers; they are not binding on the decision-maker and
do not carry the force of law. The national interest analysis is not exhausted by
the five questions, as the Minister must also consider Canada’s national and
international interests and obligations in accordance with the Act’s
objectives.
[35]
The
Respondent emphasizes that the Applicant belonged to an organization engaged in
terrorist activities for a lengthy period of time. The Applicant also
maintained those ties for years after coming to Canada. The
Respondent suggests that, even if the Applicant does not appear to be a danger
to the Canadian public, the Minister still has the discretion to refuse a
request for relief, as “national interest” involves more considerations than
are found in the Guideline questions.
[36]
The
Respondent concludes that the Minister has the discretion to find that the Applicant’s
presence would be contrary to the national interest. The Minister’s discretion
should not be interfered with lightly by the Court.
ANALYSIS
[37]
I
agree with the Respondent that a high level of deference is required when
dealing with an exercise of the ministerial discretion under section 34(2) of
the Act.
[38]
I
also agree with the Respondents that at the core of a Minister’s decision under
section 34(2) is the concept of “national interest” which involves extremely
broad national and international considerations. As the Respondent points out,
this is captured in section 13.6 of the CIC Policy and Program Manual for
Inland Processing, IP 10:
National Interest
The consideration of national interest
involves the assessment and balancing of all factors pertaining to the
Applicant’s admission against the stated objectives of the Act as well as Canada’s domestic and international
interests and obligations.
[39]
The
dispute in the present case is, at bottom, a disagreement over whether, in
rendering the Decision under review, there was any “balancing of all factors
pertaining to the Applicant’s admission against the stated objectives of the
Act.”
[40]
The
Applicant says that no such balancing and weighing occurred in the present case,
with the result that the Decision is unreasonable. What occurred instead was
that the national interest was equated entirely with the Applicant’s former
membership in MQM and no weighing or appropriate analysis took place.
[41]
The
Applicant says that the Minister failed to follow the relevant guidelines on
this matter and, while he concedes that the guidelines are not law, they do
highlight the need for a full evaluation of the national interest that takes
into account the totality of the relevant issues and factors.
[42]
The
Respondent says that all of the relevant evidence was considered and a proper
evaluation took place and directs the Court to two strong recent decisions of
this Court in Chogolzadeh v. Canada (Minister of Public Safety and Emergency
Preparedness and Minister of Citizenship and Immigration) 2008 FC 405 and Kablawi
v. Canada (Minister of Public Safety and Emergency Preparedness) 2008 FC
1011.
[43]
In
both of these decisions the Court points out that the exercise of the
ministerial discretion under section 34(2) of the Act is a balancing exercise
in which the Minister is called upon to assess and weigh the evidence
presented.
[44]
In
Chogolzadeh, Justice Shore emphasizes that the applicant in that case
had no grounds for complaint because the “Minister’s reasons for that decision
sets (sic) out an account of appropriate considerations,” (paragraph 38)
and Mr. Chogolzadeh was merely asking the Court to re-weigh the evidence.
[45]
In
the present case, the Applicant is not asking the Court to re-weigh evidence.
The Applicant is saying that, on the facts of the present case, no such
weighing occurred. The relevant guidelines and all factors other than the
Applicant’s prior involvement with the MQM were simply ignored. After reviewing
the Decision, I have to agree with the Applicant. There is no attempt to
identify and acknowledge the matters enumerated in the guidelines or to engage
in any kind of assessment and balancing of all of the factors and evidence at
play.
[46]
Similarly
in Kablawi, Justice Barnes found that the applicant in that case could
not complain because “the CBSA briefing note provides a balancing of the
positive and negative considerations sufficient to address the ‘major points in
issue’ and is reflective of a ‘consideration of the main relevant factors.’” No
such balancing is evident in the case before me.
[47]
The
briefing note in the present case acknowledges that the “consideration of
Ministerial relief involves the assessment and balancing of all factors
pertaining to the applicant’s admission against the objectives of IRPA, as well
as against Canada’s domestic and international interests and obligations.” However,
apart from a cursory acknowledgment that “Mr. Afridi is well established in Canada. He is
employed as a car sales manager and owns a house. He married a naturalized
Canadian citizen in 2002 and supports her one child,” there is no explanation
regarding any kind of balancing process or any attempt to address the questions
posed in the guidelines, the answers to which would all appear to be in the
Applicant’s favour.
[48]
The
rationale for the Decision simply equates former membership in MQM with the denial
of an application on the basis of national interest. This Court has pointed out
the dangers and inappropriateness of such an equation.
[49]
In
Soe v. Canada (Minister of Public Safety and Emergency Preparedness)
2007 FC 461, Justice Phelan warned that such an approach to section 34(2)
“renders the exercise of discretion meaningless,” (paragraph 34) and in Kanaan
v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 301
Justice Strayer had the following to say:
7.
Of course, a tribunal need not mention every bit of evidence considered, but
when the evidence is sufficiently important and is not mentioned, a Court may
infer that it was not considered: Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
Instead, in the closing words of the briefing note (which must be taken to
reflect the Minister's views) it is said that:
... Mr. Kanaan's lengthy membership in an organization listed as a
terrorist entity, coupled with his obvious lack of credibility, makes it impossible
for CBSA to make a recommendation that his presence in Canada would not be detrimental to
the national interest... .
This seems
to negate the purpose of subsection 34(2) which contemplates that even persons
who are or have been members of a terrorist organization might be admissible if
"their presence in Canada would not be detrimental to the national interest".
The assumption of the quoted rationale seems to be that if a person has ever
admitted or wrongly denied membership in a terrorist organization he will
always be a threat to the national interest of Canada. It does not consider,
for example, that even if the Applicant had been a member of ANO and whatever
the quality of that membership, he had been absent from Lebanon and the
activities of the ANO for 14 years prior to the Minister's decision.
8. I therefore conclude that the Minister's decision was
patently unreasonable in that it failed to take into account evidence and
factors presented in the Applicant's submissions of March 31, 2006 and July 25,
2006. The decision seems to have turned on the simplistic view that the
presence in Canada of someone who at some time in the past may have belonged
to a terrorist organization abroad can never be in the national interest of
Canada. I will therefore set aside the Minister's decision and refer the matter
back to him for reconsideration.
[50]
The
Decision in the present case falls into a similar error. The briefing note is
one-sided and unbalanced for the reasons put forward by the Applicant. This is
one of those occasions when the Minister’s decision must be overturned. For the
reasons given, it is unreasonable. The Applicant should have his case
reconsidered in accordance with the relevant guidelines and the governing
jurisprudence. In this regard, the decision of Justice Dawson in Naeem v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 173 provides a
principled and detailed approach that I will not reproduce here, but which
should be taken into account.
[51]
Because
this disposes of the application, there is no reason to consider the other
issues raised. However, on reviewing the record, it would appear to me that the
briefing note does not accurately summarize some of the evidence cited against
the Applicant concerning his activities in Canada and great care should be
taken to ensure that this problem does not recur.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1. The
Application is allowed, the Decision is set aside and the matter is referred
back to the Minister for reconsideration.
2. There is no question for certification.
“James
Russell”
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