Date: 20241204

Docket: IMM-5594-23

Citation: 2024 FC 1960

Ottawa, Ontario, December 4, 2024

PRESENT: The Honourable Mr. Justice Gleeson

JUDGMENT AND REASONS

I. Overview

[1] The Applicant is a Chinese citizen of Uyghur ethnicity found to be inadmissible to Canada pursuant to paragraph 34(1)(f) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. In a decision dated March 30, 2023, the Respondent, the Minister of Public Safety and Emergency Preparedness [the Minister], denied an application for relief from the inadmissibility finding pursuant to subsection 42.1(1) of the IRPA.

[2] The Applicant applies under subsection 72(1) of the IPRA for judicial review of the Minister’s March 30, 2023 decision. The Applicant argues that the Minister’s decision is both unreasonable and that the Minister also failed to consider relevant factors in deciding the application for ministerial relief.

[3] For the reasons that follow, I am not persuaded that the Minister’s decision is unreasonable. The Application is dismissed.

II. Background

[4] The Applicant entered Canada in 2005 and sought protection on the basis that he had been subjected to mistreatment while detained in China because of his Uyghur ethnicity.

[5] The Applicant was subjected to a number of interviews upon arrival in Canada during which he acknowledged his membership in the East Turkestan Liberation Organization [ETLO], described his activities with the ETLO, and expressed his intent to continue to support the organization from within Canada. The nature of the Applicant’s reported participation in the ETLO have since evolved. He states that he has not continued to be politically active within the ETLO since he left China in 2005.

[6] The Immigration Division [ID] of the Immigration and Refugee Board [IRB] found the Applicant to be a member of the ETLO, that there are reasonable grounds to believe the ETLO engages in, has engaged in or will engage in terrorism, and that the Applicant was therefore inadmissible to Canada in accordance with IRPA paragraphs 34(1)(f) and 34(1)(c). His refugee claim was terminated.

[7] In a Restriction Assessment completed pursuant to IRPA subparagraph 113(d)(ii) on March 3, 2014, the Canada Border Services Agency [CBSA] concluded that the Applicant did not constitute a danger to the security of Canada, and that the nature and severity of his acts did not reach a serious level. On December 11, 2014, the Applicant’s Pre-Removal Risk Assessment [PRRA] was approved and the Applicant’s removal order was stayed. The Applicant remains a foreign national residing in Canada. Due to his positive PRRA decision, his removal order cannot be enforced.

[8] An application for permanent residence on humanitarian and compassionate [H&C] grounds was refused in January 2014.

[9] On January 7, 2014, the Applicant submitted the application for Ministerial relief [MR] from the inadmissibility finding.

III. Decision under review

[10] The Minister’s decision follows a thirty-three page assessment prepared by the CBSA and submitted to the Minister in January 2021 [Assessment]. The Assessment provides a detailed overview of the Applicant’s immigration history, the information and evidence considered in preparing the Assessment, and the Applicant’s submissions made in support of the application for MR. The Assessment identifies a number of attached documents and concludes with a recommendation page. The recommendation page includes a block to allow the Minister to record the decision taken followed by the Minister’s signature.

[11] The Assessment notes the following:

1. The Applicant has provided two narratives – in his first narrative the Applicant portrays himself as an informed, committed member of the ETLO. He carried out many activities such as helping with the transport, recruitment and accommodation of members, financial contributions, distributing pamphlets, and attending small-scale meetings. He admitted having knowledge of violent and terrorist activities before he joined, and stated he would continue involvement in the ETLO from Canada. In the second narrative, he reports not being involved with the ETLO or other illegal movements, not knowing anyone who had been involved in such organizations, and stated that he had fabricated his claim of being part of the ETLO. He described his political activities in China as having distributed pamphlets on Uyghur rights. The CBSA noted that the IRB found the second narrative to be self-serving.

2. Despite the Applicant’s assertions that his early statements (i.e., the first narrative) were false or fabricated for various reasons, the CBSA followed jurisprudence to the effect that earlier statements should be considered as more reliable and genuine. Therefore, in considering the request for MR, the CBSA undertook the assessment of the national interest on the basis that the Applicant was a member of the ETLO.

3. The CBSA also noted that the drastically different versions of events affect the reliability of the Applicant’s narrative, particularly regarding membership in and activities for the ETLO.

4. The CBSA noted that despite downplaying his role with the ETLO the Applicant provided detailed statements about the group – its history, objectives, methods and chain of command.

5. The CBSA noted that direct involvement in specific acts are not required for inadmissibility under paragraph 34(1)(f) of the IRPA, and that the Applicant demonstrated substantial commitment to the organization. His conduct indicated a prioritization of the needs of the organization over his personal safety.

6. The CBSA noted that the ETLO has pursued its goals through extreme acts of violence and terrorism, and that the pursuit of political power by these means was fundamentally at odds with the democratic spirit of Canadian society.

7. The CBSA acknowledged the Applicant’s lack of involvement with the ETLO since coming to Canada was a factor supporting the granting of relief. However, it also noted that the Applicant had explained that an oath to the group is a lifelong commitment, thus the passage of time without involvement does not remove the Applicant’s requirement to satisfy the Minister that his presence in Canada would not be detrimental to the national interest. The CBSA clarified that concerns arise because of the Applicant’s prior, active, committed membership with the ETLO.

8. Citing Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira], the CBSA stated an evaluation of national interest is not limited to forward-looking parameters – past activities can also be considered. The CBSA also identified the following factors as being relevant when considering the nature and extent of an individual’s involvement with an organization: the circumstances surrounding the applicant’s joining, the length of involvement, whether the individual willingly and knowingly participated, and whether the applicant has provided consistent information with respect to his or her membership and activities with the organization.

9. The Applicant’s concerns, as a Uyghur and an HIV-positive individual, with being returned to China were noted. However, the CBSA stated that these interests are protected by his positive PRRA decision. Canada must respect their obligation of non-refoulement. Accordingly, the CBSA found that the Applicant’s concerns of removal were not germane in this application, as his removal has been stayed.

10. The Applicant’s difficulties arising from not having permanent resident [PR] status, including obtaining employment, occasional interruption in medical care, and an inability to travel or visit family were also addressed. The CBSA noted it is not the function of the MR process to alleviate travel restrictions, and added that the Applicant’s evidence demonstrates that he has been able to work and integrate into his community without PR status. Nevertheless, the CBSA considered the difficulties faced by the Applicant and the IRPA objective of family reunification, cited by the Applicant, and gave them positive weight.

11. In response to the Applicant’s submissions that his history of good behaviour in Canada deserved positive consideration, the CBSA noted that national security and public safety are not solely determined by the presence or absence of criminal activity, but that factors related to an applicant’s conduct in Canada are relevant for the Minister’s assessment.

12. With respect to establishment in Canada, the CBSA cited Naeem v Canada (Public Safety and Emergency Preparedness), 2016 FC 1285 [Naeem] in noting that, when assessing whether continued presence in Canada would be detrimental to the national interest, factors relating to current activities in Canada need not be afforded greater weight than past actions. The balancing of these factors was discretionary and not subject to judicial re-weighing when a reviewing court is considering the reasonableness of the decision.

[12] The Assessment concludes as follows:

The CBSA has considered the totality of this case, including the inconsistent and seemingly self-serving narratives that Mr. Abdulimiti has advanced in relation to his ETLO involvement. As noted above, the CBSA is of the opinion that the information provided by Mr. Abdulimiti is insufficient to allow the MPSEP to overlook his earliest, detailed statements relating to his active, committed membership in the ETLO, particularly given that he had also subsequently provided a PIF [Personal Information Form], which largely maintained his original narrative of ETLO membership, and, in a later interview, he had re-confirmed the truthfulness of the statements made in his first interviews. Mr. Abdulimiti has made statements to Canadian officials which intimate that he was aware, even prior to joining the group, of the range of violent and terrorists [sic] activities undertaken by the organization, including suicide bombings and, in one statement, he explained that one of the goals of the organization was to assassinate members of the Han race at large. He indicated that he did not attempt to leave the organization in China despite this knowledge, and told Canadian immigration officials upon his arrival that he intended to continue his membership in Canada.

Having taken into consideration the totality of Mr. Abdulimiti’s circumstances, and particularly in light of the predominant considerations in this case related to national security and public safety, as assessed above, the CBSA is of the opinion that Mr. Abdulimiti has not satisfactorily discharged his burden to demonstrate that Ministerial relief is warranted in his case.

[13] The Assessment ultimately recommends the Minister deny the request that the Applicant be relieved of the finding of inadmissibility under paragraph 34(1)(f) of the IRPA.

[14] Not being satisfied that “making a declaration of relief is not contrary to the national interest,” the Minister denied the relief.

IV. Issues and Standard of Review

[15] The Applicant submits the Minister’s decision is unreasonable for two reasons. First, the finding that the Applicant’s continued presence in Canada was a threat to national security and public safety is unreasonable. Second, the Applicant contends that factors relevant to the application for MR were not considered.

[16] The first issue, as framed by the Applicant, misstates the decision made. The Minister did not determine that the Applicant’s continued presence in Canada was a threat to national security and public safety. Instead, and in accordance with section 42.1 of the IRPA, the Minister determined that the Applicant had failed to satisfy the Minister “that it is not contrary to the national interest” to effectively set aside the prior inadmissibility finding.

[17] The sole issue that arises on the Application is whether the Minister’s determination is reasonable.

[18] The Parties do not dispute that the Minister’s decision is reviewable on the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 10 [Vavilov], Agraira at paras 49-50). I agree.

[19] A reasonable decision is one that bears the hallmarks of reasonableness – justification, transparency and intelligibility (Vavilov at para 99). Review on a reasonableness standard involves the exercise of judicial restraint and demonstrates a respect for the distinct role of the administrative decision maker but is a robust form of review (Vavilov at para 13). The party challenging a decision is required to satisfy the Court that the decision suffers from shortcomings that are more than merely superficial or peripheral to the merits of the decision (Vavilov at para 100).

V. Analysis

A. Relevant Legislation

[20] The following provisions of the IRPA are relevant to this Application:

B. Governing Principles

[21] The principles governing the consideration of an application for MR from a finding of inadmissibility are set out in Hameed v Canada (Public Safety and Emergency Preparedness), 2015 FC 1353 at paragraphs 24 to 29 [Hameed]. Although Hameed identifies these principles in considering the former subsection 34(2) of IRPA – not the current section 42.1, – the following principles remain applicable:

1. An applicant for MR bears the onus of satisfying the Minister that their presence in Canada would not be detrimental to the national interest (Hameed at para 24 citing Al Yamani v Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 381 at para 69 [Al Yamani]).

2. Where the Minister adopts the recommendation contained in a CBSA Assessment, that Assessment will be taken to be the Minister’s reasons (Hameed at para 25 citing Al Yamani at para 52; Haj Khalil v Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 213 at para 29).

3. Although subsection 42.1(3) requires the Minister to only consider national security and public safety considerations in determining whether to make a declaration, this does not exclude a broader range of matters or factors from consideration in the analysis (Hameed at para 26 citing Agraira at para 87).

4. Although personal factors relating to the individual applicant may be relevant – for example they may shed light on an applicant’s personal characteristics that are relevant to determining whether the individual might be viewed as a threat to the security of Canada – applications for MR under section 42.1 of the IRPA are not an alternate form of H&C review (Hameed at para 27 citing Agraira at para 84).

C. The Minister’s decision is reasonable

[22] In submitting there is an absence of evidence to indicate that he was directly involved in acts of terrorism as a member of the ETLO, the Applicant relies on the March 3, 2014 CBSA Restriction Assessment prepared in the context of his PRRA. The Applicant further notes the absence of any evidence of involvement with the ETLO since his arrival in Canada in 2005. The Applicant argues that, together, these circumstances justify granting the relief sought.

[23] The Applicant further submits that it was unreasonable for the Minister to rely on the Applicant’s statements indicating “prior, active, committed membership” with the ETLO – particularly where stemming from the Applicant’s Port of Entry [POE] interviews – to justify ongoing national security and public safety concerns [NSPS] all the while not considering evidence linked to the Applicant’s time in Canada. The Applicant accepts that past conduct is relevant, but contends it should not be the only consideration. In considering past conduct only, the Minister failed to engage in a forward-facing NSPS risk analysis, and failed to properly consider the applicable factors set out in a CBSA online guide.

[24] The Applicant argues the Minister did not consider his statements made at the POE and in subsequent CBSA interviews to the effect that he does not support violence, which would support a conclusion that the Applicant does not present a danger to NSPS. The Minister also failed to address conclusions reached in prior assessments to the effect that he is not a danger to Canada, and that his involvement with the ETLO was not serious. The Minister erred by focusing on the POE statements that the Applicant later described as incorrect, and ignored contrary information.

[25] I am unpersuaded by the Applicant’s submissions. The Assessment includes a detailed summary of the Applicant’s history and the submissions made in support of the relief Application. The Applicant’s submissions are set out and grappled with in the analysis portion of the document.

[26] The Minister did not err in considering prior conduct (Afridi v Canada (Public Safety and Emergency Preparedness), 2015 FC 1299 [Afridi]). As I noted in Rizvi v Canada (Public Safety and Emergency Preparedness), 2019 FC 565 [Rizvi], “past activities are of import and relevance” when considering whether an applicant’s presence in Canada would be contrary to the national interest in the context of a request under section 42.1 (Rizvi at para 30). Nor was reliance on past conduct the sole consideration. For example, the Applicant’s assertion that he was not involved with the ETLO since his departure from China was weighed against his prior statement that his oath and membership to the ETLO reflected a lifelong commitment, and the Assessment noted that the passage of time alone is not sufficient to satisfy the burden of demonstrating that presence in Canada is not detrimental to the national interest. The analysis is responsive to the Applicant’s submissions, and reflects the required attributes of a reasonable determination – transparency, justification and intelligibility. These facts distinguish this matter from Soe v Canada (Public Safety and Emergency Preparedness), 2007 FC 461, where the Court intervened on the basis that the refusal of relief was not justified.

[27] That the Applicant did not directly participate in any violence undertaken in pursuit of ETLO goals is similarly of little assistance to the Applicant. As stated by Justice Mandy Aylen in Shohan v Canada (Citizenship and Immigration), 2023 FC 515, “[n]othing in paragraph 34(1)(f) requires or contemplates a complicity analysis in the context of membership” (Shohan at para 36, Rizvi at para 34).

[28] The Minister acknowledged the Applicant’s submissions that his involvement with the ETLO was at a low level and limited to the distribution of pamphlets on a university campus. However, the Minister also noted the Applicant had provided two dramatically different narratives in describing his involvement with and role within the ETLO. The first narrative went beyond mere membership to include transportation, recruitment, financial aid, and the provision of other logistical support to the ETLO and its members. In the face of the Applicant’s markedly different reporting of his role in ETLO, it was reasonably open to the Minister to conclude that the Applicant had failed to demonstrate relief was warranted on the basis of his limited involvement with the ETLO.

[29] Nor did the Minister err by placing undue focus on the POE statements, failing to address statements indicating the Applicant did not support the use of violence to achieve ETLO goals, or by failing to give consideration to the conclusions reached or statements made in prior assessments. This argument amounts to nothing more than an attempt to have this Court reweigh the evidence. The Assessment clearly details the content of the Applicant’s various interviews. The Assessment also addresses the Applicant’s stated views on violence, concluding those particular statements are to be considered within the totality of the Applicant’s statements, including those that suggest the Applicant at least acquiesced to the use of violence to advance “the cause.” The outcome of the restriction assessment and the positive PRRA decision are also set out in the assessment. However, these prior determinations are not determinative of an application for MR; an application that is to be assessed on it own merits, and in accordance with the applicable jurisprudence as was noted in the Assessment.

[30] Finally, I also reject the Applicant’s argument that the Minister erred by failing to consider relevant factors in deciding the Application for relief, and more specifically the five factors identified in Hameed. As stated in Agraira a wide variety of factors may validly be considered under section 42.1 but “[u]ltimately, which factors are relevant to the analysis in any given case will depend on the particulars of the application before the Minister” (Agarira at para 87). This was recognized in Hameed where the listed factors were indicated as a guide (Hameed at para 26). As I have previously noted, the Assessment details and engages with the Applicant’s submissions in support of the requested relief.

VI. Conclusion

[31] Having concluded the decision is reasonable the Application is dismissed. The parties have not identified a question for certification, and none arises.

JUDGMENT IN IMM-5594-23

THIS COURT’S JUDGMENT is that:

1. The Application is dismissed.

2. No question is certified.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: