Dockets: IMM-6971-13
IMM-1940-15
Citation:
2015 FC 1353
Ottawa, Ontario, December 8, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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Docket: IMM-6971-13
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BETWEEN:
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TAHIRA HAMEED
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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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Docket: IMM-1940-15
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AND BETWEEN:
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TAHIRA HAMEED
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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]
Before me are two applications for judicial
review brought by Tahira Hameed. The first relates to the decision of an
immigration officer that found Ms. Hameed to be inadmissible to Canada for
being a member of the Haqiqi branch of the Muttahida Quami Movement (MQM‑H),
an organization for which there are reasonable grounds to believe has engaged
in terrorism. The second application relates to the decision of the Minister of
Public Safety and Emergency Preparedness refusing to grant Ministerial relief
from the inadmissibility finding to Ms. Hameed.
[2]
Ms. Hameed submits that the Minister’s decision
refusing to grant her Ministerial relief was unreasonable to the extent that
the decision was based on alleged inconsistencies in her evidence, as the
inconsistencies were either minor or non-existent. Ms. Hameed further argues
that the Minister gave undue weight to Ms. Hameed’s past membership in the
MQM‑H, and that he failed to have sufficient regard to the brief,
low-level and non-violent nature of her involvement with the organization. Ms. Hameed
also asserts that the Minister failed to give sufficient consideration to the
compelling personal factors favoring the granting of relief, including the best
interests of her five Canadian-born children.
[3]
Ms. Hameed has not made any substantive
submissions with respect to the reasonableness of the inadmissibility finding.
She accepts that if the Minister’s decision denying her Ministerial relief is
upheld, the application challenging the inadmissibility finding should properly
be dismissed. She submits, however, that if the decision of the Minister refusing
Ministerial relief is set aside, it should follow that the inadmissibility
decision should also be quashed.
[4]
For the reasons that follow, I have concluded
that the Minister’s decision refusing to grant Ministerial relief to Ms. Hameed
was reasonable. Consequently, both applications for judicial review will be
dismissed.
I.
Background
[5]
Ms. Hameed, who is a nurse by training, is
a citizen of Pakistan and a member of the Urdu-speaking Mohajir ethnic
minority. She comes from a politically active family who was involved in the
Mohajir Quami Movement. In 1993, Ms. Hameed joined the women’s wing of the
MQM‑H at the urging of her father, and she helped the MQM‑H
establish a family planning clinic in Karachi, where she volunteered several
days a week. Ms. Hameed also raised funds for the clinic through the MQM‑H.
[6]
In August of 1995, Ms. Hameed was kidnapped
by members of the MQM‑A, a rival of the MQM‑H, outside of the health
clinic where she volunteered. She was then forced to treat a gun-shot victim. While
she was treating the victim, the police raided the building in which she was
being held and arrested her. Ms. Hameed was released the next day on the
promise that she would identify her kidnappers.
[7]
Ms. Hameed says that she then began
receiving threats from the MQM‑A, prompting her father to send her to
Islamabad in order to keep her safe. However, in November of 1996, Ms. Hameed
was the subject of another kidnapping attempt, this one being unsuccessful. Ms. Hameed
then fled to Lahore, although she subsequently returned to Karachi.
[8]
In March of 1997, Ms. Hameed and her
brother were the subject of an attack by members of the MQM‑A, which caused
serious injuries to them both. Two months later, Ms. Hameed’s fiancé was
kidnapped, tortured and killed for being an MQM‑H member. On June 10,
1997, Ms. Hameed was wounded in an attack by unknown gunman while at a
meeting of the MQM‑H’s women’s wing. A month later, her brothers were
kidnapped and they have never been seen again.
[9]
In August of 1997, Ms. Hameed and her
father were arrested and tortured by the police, who questioned them about the
death of several police officers allegedly killed by members of the MQM‑H.
Ms. Hameed and her father were later released upon the payment of a bribe.
Ms. Hameed’s father advised her that she should leave Pakistan, which she
did on August 28, 1997, arriving in Canada two days later.
[10]
Once in Canada, Ms. Hameed remained in
contact with the MQM‑H through their office in Chicago, although there is
a dispute as to the nature and extent of her involvement with the North
American branch of the organization.
[11]
Ms. Hameed was recognized as a Convention
refugee in 1999, and she applied for permanent residence that same year. In
2002, Ms. Hameed was reported to be inadmissible to Canada pursuant to section
19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2, as a
result of her involvement in the MQM‑H.
[12]
Ms. Hameed applied for Ministerial relief
from the inadmissibility determination on April 25, 2002. Her application
was first refused on June 19, 2013. However, this decision was later set aside
on consent to allow the Minister to reconsider his decision in light of the
Supreme Court’s decision in Agraira v. Canada (Minister of Public Safety and
Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559.
[13]
On October 16, 2013, Ms. Hameed’s
application for permanent residence was denied, and on March 31, 2015, the
Minister once again refused Ms. Hameed’s application for Ministerial
relief.
II.
The Inadmissibility Finding
[14]
Although she takes issue with findings made with
respect to the nature and extent of her involvement with the organization, Ms. Hameed
admits that she was a member of the MQM‑H while she lived in Pakistan.
She has also not disputed that there are reasonable grounds to believe that the
MQM‑H has engaged in terrorism, although she says that she was not aware
of this at the relevant time. There is thus no substantive reason to set aside
the decision finding that Ms. Hameed was inadmissible to Canada under
paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27.
[15]
This leaves the question of whether the
Ministerial relief decision was reasonable.
III.
The Minister’s Decision Denying Relief to Ms.
Hameed
[16]
As is the practice in cases such as this, the
Canada Border Service Agency prepared a briefing note summarizing Ms. Hameed’s
application for Ministerial relief for consideration by the Minister.
[17]
The briefing note provides an overview of the
Ministerial relief process and identifies the legal test to be applied by the
Minister in deciding whether relief should be granted to Ms. Hameed.
[18]
The document contains background information
regarding both the MQM‑H, and its predecessor, the MQM. After reviewing Ms. Hameed’s
immigration history, the briefing note provides a detailed discussion of her
involvement with the MQM‑H, including her version of certain events and
her position on various issues. The briefing note then provides an assessment
of Ms. Hameed’s application, discussing the evidence weighing against her,
and explaining why Ms. Hameed’s arguments on various points should not be
accepted. The analysis ends with a recommendation by the President of the
Canada Border Services Agency that Ministerial relief not be granted to Ms. Hameed.
[19]
The document concludes with a statement by the Minister
that he was “not satisfied that the presence of Ms. Tahira
Hameed in Canada would not be detrimental to the national interest”. Consequently,
Ministerial relief was denied.
IV.
Ms. Hameed’s Submissions
[20]
Ms. Hameed submits that the Minister’s
decision was based upon two principle considerations: her past membership in
the MQM‑H, and the alleged inconsistencies in her evidence.
[21]
To the extent that the Minister’s decision was
based upon her past membership in the MQM‑H, Ms. Hameed says that
the decision is unreasonable, as the Minister failed to fully appreciate the
limited, low-level, humanitarian role that she played within the organization.
The Minister further erred, Ms. Hameed says, by finding inconsistencies in
her evidence where none existed, or by basing the decision on inconsistencies
in her evidence that were minor or inconsequential.
[22]
Finally, Ms. Hameed submits that the
Minister erred by failing to give sufficient consideration to the humanitarian
considerations that were raised in her application for Ministerial relief.
These considerations included the best interests of Ms. Hameed’s five
Canadian-born children, and the impact that denying relief to Ms. Hameed
would have on her husband’s immigration status.
[23]
Each of these arguments will be addressed in
turn. Before doing so, however, it is important to understand the principles
applicable to judicial reviews of Ministerial decisions under subsection 34(2)
of IRPA.
V.
Legal Principles Governing Applications for
Ministerial Relief
[24]
It is the applicant for Ministerial relief who
bears the onus of satisfying the Minister that his or her presence in Canada
would not be detrimental to the national interest: Al Yamani v. Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 381 at
para. 69, 311 F.T.R. 193.
[25]
Where the Minister adopts the recommendation
contained in a CBSA briefing note, the briefing note will be taken to be the
Minister’s reasons: Al Yamani, above at para. 52; Haj Khalil v.
Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 213
at para. 29, 464 N.R. 98.
[26]
The test to be applied by the Minister in
deciding whether Ministerial relief should be granted in a given case was
discussed by the Supreme Court of Canada in Agraira, above. There, the
Court held 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)”: at para. 87. In general, the Minister should be
guided by the following factors:
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 may be benefiting from previous
membership in the regime/organization?
5. Has
the person adopted the democratic values of Canadian society?
Agraira,
above at para. 87.
[27]
Applications for Ministerial relief under
subsection 34(2) of IRPA are not intended to be an alternate form of
humanitarian and compassionate review. Personal factors relating to the
individual applicant may, however, be relevant in the context of an application
for Ministerial relief, where, for example, they could shed light on the
applicant’s personal characteristics in determining whether he or she can be
viewed as a threat to the security of Canada: Agraira, above at para.
84.
[28]
Given the discretionary nature of subsection
34(2) decisions, the standard of review to be applied in reviewing the
substance of a decision of the Minister refusing to grant Ministerial relief is
that of reasonableness: Agraira, above at paras. 49-50. An
interpretation of the national interest that relates primarily to national
security and public safety, but which does not exclude the other considerations
is reasonable: Agraira, above, at para. 88.
[29]
With this understanding of the relevant
principles governing a case such as this, I will turn next to consider Ms. Hameed’s
arguments as to why the Minister’s decision was unreasonable.
VI.
Ms. Hameed’s Past Membership in the MQM‑H
[30]
It is a reviewable error for the Minister to
refuse an application for Ministerial relief simply because the applicant was a
member of an organization for which there are reasonable grounds to believe has
engaged in terrorism: Soe v. Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 461 at paras. 32-35, [2007] F.C.J. No. 620; Kanaan
v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC
241 at paras. 6-8, 71 Imm. L.R. (3d) 63. Section 34(2) of IRPA is only
engaged once an individual has been found to be inadmissible to Canada for
being a member of such an organization, and as Justice Phelan noted in Soe,
above, at para. 34, treating past membership as determinative of an application
for Ministerial relief would render the exercise of
discretion meaningless.
[31]
This is not, however, such a case. The Minister
did not treat Ms. Hameed’s past membership in the MQM-H as being
determinative of her application for Ministerial relief. Instead, the Minister
had regard to the nature and extent of her involvement with the MQM‑H,
the role that she played within the organization, and the commitment to the
organization that was demonstrated by her continued involvement with the
organization, despite facing intense persecution as a result of that
involvement.
[32]
At the same time, the reasons specifically note Ms. Hameed’s
position that:
•
She was an ordinary member of the MQM‑H
and held no positions of authority within the organization;
•
Her participation in the MQM‑H primarily
consisted of healthcare delivery at a clinic established by the organization;
•
Any monies that she may have raised for the
MQM-H were intended for use in the family planning clinic; and
•
She was unaware of the MQM‑H’s acts of
violence, and she would not have joined the organization had she known that it
had engaged in violence.
[33]
The Minister balanced these competing
considerations, and, at the end of the day, what Ms. Hameed takes issue
with is the weight that was ascribed to the factors relating to her past
membership in the MQM‑H that militated against the granting of relief relative
to the weight that was ascribed to factors that might have favored the granting
of Ministerial relief.
[34]
In reviewing the reasonableness of the
Minister’s exercise of discretion under subsection 34(2) of IRPA,
the Court is not, however, entitled to re-weigh the evidence that was before
the Minister. Where, as here, the Minister has considered and weighed all of
the factors relevant to an application for Ministerial relief, the decision
should be found to be reasonable: Agraira, above at para. 91.
VII.
The Inconsistencies in Ms. Hameed’s
Evidence
[35]
Ms. Hameed also takes issue with the
Minister’s reliance on alleged inconsistencies in the submissions that she has
made over the years. According to Ms. Hameed, the essential nature of her
story has been remarkably consistent, and the Minister “was
really over-reaching” in finding material inconsistencies in her
evidence where none existed.
[36]
Inconsistencies were noted in Ms. Hameed’s
evidence on a number of points, including the circumstances under which she
joined the MQM‑H, the nature of the MQM‑H meetings that she
attended in Pakistan, her role in recruiting members into the MQM‑H, and
the nature and extent of her involvement with the MQM‑H after her arrival
in Canada.
[37]
The briefing note specifically identifies the
various submissions that have been made by Ms. Hameed over the years on
these points, flagging where there were inconsistencies in her evidence.
[38]
For example, the note observes that in her
application for refugee protection and in other submissions that she has made
to Canadian immigration authorities over the years, Ms. Hameed maintained
that her decision to join the MQM‑H had been a voluntary one, although
she says that she joined the organization with the encouragement of her
father.
[39]
In contrast, in her most recent submissions in
support of her application for Ministerial relief, Ms. Hameed maintained
that her decision to join the MQM‑H was not in fact voluntary, but that
she was pressured into joining the organization by her father and brother, even
though she had no interest in politics. Ms. Hameed stated that it was not
open to her to resist the wishes of her male family members, as she lived in a
male-dominated society. She further explained that she had not previously
mentioned the duress that she was under, as it would have been disloyal for her
to speak of her father in this manner. This does not, of course, explain why it
was now appropriate for her to do so.
[40]
Similarly, Ms. Hameed’s initial submissions
to the Minister stated that while she was in Pakistan, she was involved in
encouraging other women to join the MQM‑H’s women’s wing. She now states,
however, that she was not involved in recruiting women for the MQM‑H’s
political activities, but only for the organization’s humanitarian endeavours,
such as the health clinic.
[41]
Insofar as the nature and extent of her
involvement with the MQM‑H in North America is concerned, Ms. Hameed
provided conflicting evidence with respect to the duration and frequency of her
contact with the MQM‑H’s Chicago office. She had variously stated that
she ceased being active in the MQM‑H soon after her arrival in Canada,
that she ceased being in contact with the organization in 1999, and that she
was still a member at the time of her CSIS and CIC interviews in 2000 and 2001.
[42]
Ms. Hameed now says that she was initially
in contact with the MQM‑H office in Chicago in order to obtain proof of
membership in the organization for her refugee hearing. She also now states
that she contacted the Chicago office on a few subsequent occasions in order to
attempt to obtain information regarding her family members still in Pakistan.
[43]
In each of these cases, the briefing note
reviewed the information that Ms. Hameed had provided over time,
highlighting instances where her evidence has conflicted. It was ultimately up
to the Minister to decide how significant these inconsistencies were, and, once
again, it is not the role of this Court, sitting in review of the Minister’s
decision, to re-weigh the evidence that was before the Minister.
VIII.
The Minister’s Consideration of Ms. Hameed’s
H&C Factors
[44]
Ms. Hameed’s final argument relates to the
way that the Minister dealt with the humanitarian and compassionate
considerations that were raised by her application for Ministerial relief.
[45]
Ms. Hameed noted in her submissions to the
Minister that she is a Convention refugee, that she has five Canadian-born
children, and that her spouse is also in Canada. She submitted that it would be
contrary to her children’s best interests to have her removed from Canada, and
that her husband’s status in Canada would also be put in jeopardy if she was
denied Ministerial relief, as he is a failed refugee claimant who was included
in her application for permanent residence.
[46]
In support of her submissions regarding the
interests of her children, Ms. Hameed submits that it is in her children’s
best interests to remain with both of their parents in Canada. She also
provided the Minister with psychological reports outlining the impact that the
family’s uncertain immigration status has had on her children’s mental health.
[47]
Once again, Ms. Hameed’s submissions
regarding her personal circumstances and those of her husband, and her
submissions regarding the best interests of her children were all outlined, in
detail, in the briefing note. It cannot thus be said that the Minister did not
have regard to Ms. Hameed’s submissions regarding the humanitarian and
compassionate consideration raised by her application.
[48]
Indeed, the briefing note explicitly states that
Ms. Hameed’s submissions regarding her personal circumstances had been
considered, recognizing, however, that according to the Supreme Court of
Canada’s decision in Agraira, the predominant considerations in an
application for Ministerial relief are Canada’s national security and public
safety.
[49]
Ms. Hameed acknowledges that the Supreme
Court held in Agraira that applications for Ministerial relief under
subsection 34(2) of IRPA are not intended to be an alternate form of
humanitarian and compassionate review. Indeed, the Supreme Court expressly
stated that H&C factors are more properly considered in the context of an
application for permanent residence on humanitarian and compassionate grounds: Agraira,
above at para. 84.
[50]
Ms. Hameed submits, however, that the
decision in Agraira was premised on the notion that H&C relief was
in fact available to someone in her situation. Given that this is no longer the
case, she says that the ruling in Agraira should be revisited.
[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.
[53]
The Supreme Court’s decision in Agraira
was binding on the Minister when he considered Ms. Hameed’s application
for Ministerial relief, just as it is binding on me. Although she filed her last
set of submissions with the Minister after the enactment of the FRFCA, Ms. Hameed
did not make the argument to the Minister that she is now advancing in her
submissions. As a result, the Minister cannot be faulted for failing to
consider submissions that were not made to him. We also do not have the benefit
of a decision by the Minister on this issue to inform the analysis of Ms. Hameed’s
new argument.
[54]
Ms. Hameed also did not raise this argument
in her application for leave, nor did she raise it in the memorandum of fact
and law filed in relation to her application for judicial review. Indeed, it
appears that Ms. Hameed raised this argument for the very first time at
the hearing of her application for judicial review. This was unfair to the
respondent, who may have responded differently to the application, had he been
aware that the ongoing relevance of Agraira was under challenge. I am
therefore not prepared to decide the case on this basis.
[55]
The Minister expressly considered all of the
factors raised by Ms. Hameed in her submissions, including her various
H&C factors, before concluding that he was not satisfied that the presence
of Ms. Hameed in Canada would not be detrimental to the national interest,
and no reviewable error has been identified in his treatment of Ms. Hameed’s
H&C factors.
IX.
Conclusion
[56]
Ms. Hameed has not identified any relevant
factors that were not considered by the Minister in deciding her application
for Ministerial relief, nor has she identified any irrelevant factors that were
taken into consideration by the Minister in concluding that it was not in the
national interest to provide her with such relief. All of Ms. Hameed’s
submissions are essentially an invitation to have the Court reweigh the
evidence that was before the Minister.
[57]
As noted earlier, that is not the role of this
Court, sitting in review of the Minister’s decision. While I might well have
weighed the competing factors differently, where, as here, the Minister has
considered and weighed all of the relevant factors, the decision should be
found to be reasonable. Consequently, Ms. Hameed’s application for
judicial review is dismissed.
X.
The Proposed Certified Question
[58]
Ms. Hameed proposes the following question
for certification:
As a result of the
removal of the possibility of seeking humanitarian and compassionate
consideration pursuant to section 25 of IRPA for persons
inadmissible under section 34, 35 or 37, should the Court reconsider the
direction of the Supreme Court of Canada in Agraira which excludes
consideration of humanitarian and compassionate factors in an application for
Ministerial relief?
[59]
As noted earlier, I am not prepared to decide
this question in considering Ms. Hameed’s application for judicial review.
Consequently, the answer to the question would not be dispositive of this
application, and I therefore decline to certify it.
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