Date: 20241212

Docket: IMM-5375-23

Citation: 2024 FC 2015

Ottawa, Ontario, December 12, 2024

PRESENT: The Honourable Mr. Justice Roy

BETWEEN:

SUMERA MEMON

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA

Respondent

JUDGMENT AND REASONS

[1] This is a judicial review application brought pursuant to s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA]. The Applicant, Sumera Memon [Dr. Memon], seeks the judicial review of the decision dated February 23, 2023, refusing the Principal Applicant and her family’s Permanent Resident Application under paragraph 42(1)(a) of the IRPA, on the basis of her husband’s inadmissibility under paragraph 35(1)(a).

[2] The issue before this Court is the reasonableness of the impugned decision. The Applicant seeks an Order setting aside the Decision of the Officer and remitting the matter to a different Visa Officer for determination.

[3] For the reasons that follow, the application for judicial review must be dismissed.

I. Facts

A. The Application

[4] The Applicant is a citizen of Pakistan, who applied for permanent residence as a skilled worker based on her training as a medical doctor. She completed her Bachelor of Medicine and Bachelor of Surgery at ISRA University, in Hyderabad, Pakistan in 2004. She also received an executive Master of Business Administration in Health Management from Preston University in 2021. She applied for permanent residence in Canada on September 11, 2014.

[5] Dr. Memon’s application for permanent residence included three family members: (1) herself (Sumera Memon); (2) her husband (Faisal Bashir Memon [Mr. Memon]); and (3) their daughter who was born on October 3^rd, 2014, Ayesha Memon (the Applicant updated her application on January 26, 2015 to include her daughter).

[6] On the Applicant’s Generic Application Form for Canada, Dr. Memon indicated her Husband’s profession as Senior Superintendent of Police in the Sindh Police in the Sindh Province of Pakistan.

[7] Mr. Memon has an extensive history within the Sindh Police Force. He joined the Police Service of Pakistan in November 2008. His employment within the Sindh Police Service is as follows:

1. November 2008 to July 2010: Assistant Superintendent of Police Under Training

2. July 2010 to March 2011: Assistant Superintendent of Police, Margallah Islamabad

3. March 2011 to July 2011: Assistant Superintendent of Police, City Islamabad

4. July 2011 to September 2012: Superintendent of Police, Rural Islamabad

5. September 2012 to February 2013: Superintendent of Police, Headquarters Islamabad

6. February 2013 to June 2013: Superintendent of Police, VVIP Security Islamabad

7. June 2013 to September 2013: Superintendent of Police, Muhafiz Karachi

8. September 2013 to May 2014: Senior Superintendent of Police, City Karachi

9. May 2014 to January 2015: Senior Superintendent of Police, South Karachi

10. May 2015 to March 2016: Assistant Inspector General of Police, Logistics

11. June 2016 to August 2018: Director (Enquiries) & Anti Corruption Establishment

12. October 2018 to October 2019: Director Anti Encroachment Cell, Bor

13. July 2020 to August 2021: Senior Superintendent of Police, Mirpur khas, District, Sindh

14. February 2022 to October 2022: Senior Superintendent of police, District Korangi Karachi

15. October 2022 to Present (submitted in Schedule A Background declaration form, on January 24, 2023): Senior Superintendent of Police, District West Karachi

B. Procedural History

[8] Upon reviewing the application, the Department of Citizenship and Immigration sent a letter to the Applicant requesting that her husband, Faisal Bashir Memon, attend the Embassy of Canada in Abu Dhabi on January 26, 2023, for an interview. Due to the COVID-19 pandemic, it appears that there were delays in treating the application for permanent residence and in requesting the Applicant’s husband for an interview. In this interview, the Officer questioned Faisal Bashir Memon on his work within the Sindh Police Service.

[9] During the interview, Mr. Memon explained that he has control over the group responsible for transferring arrested suspects over to the Investigative Branch. He also admitted that he is aware of torture being used as a form of interrogation by the Investigative Branch. However, he stated that he is not connected to the Investigative Branch and that his unit does not conduct interrogations of suspects.

[10] Following the interview, a Procedural Fairness Letter was sent to the Applicant requesting written information to address concerns raised during the interview, regarding the reasonable grounds to believe that the Applicant’s husband is a member of the inadmissible class of persons under paragraph 35(1)(a). Consequently, Dr. Memon could be inadmissible under paragraph 42(1)(a) of the IRPA.

[11] Mr. Memon responded to the letter on February 11, 2023, emphasizing that he has always been an advocate for law and order and that he has never been involved directly or indirectly in any crime against humanity. He highlighted his work as largely administrative and more supervisory in nature than operational. The Applicant’s husband also states that he is not responsible for the actions of the police officials below him, as he only supervises the officials working directly for him. Thus, he contends that it would be impractical to hold him accountable for the actions of the individual officers under his greater supervision.

[12] In response to the Procedural Fairness Letter, the Officer explained in the Global Case Management System [GCMS] notes, page 5:

I am not satisfied [because this] response elevates my concerns, as outlined above, as to the applicant’s inadmissibility per A35(l)(a). As they have made a voluntary, knowledgeable and significant contribution at a senior level to an organization where the systemic practice of torture has taken place, and continues to take place. While also holding a position of authority within the hierarchy where they were directly/indirectly involved in the supervision of police officers, even if that was through the supervision of a Deputy Superintendent or a Superintendent.

[13] By way of letter dated February 23, 2023, the Officer denied the application for permanent residency. The Officer’s reasons are contained in the GCMS notes for the file, which together with the February 23, 2023 letter, comprise the decision under review (Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para 44).

II. The Decision Under Review

[14] Following a review of the Applicant’s file, the Immigration Officer concluded that Mr. Memon was inadmissible to Canada pursuant to paragraph 35(1)(a) of the IRPA, for his role as a Senior Superintendent in the Sindh police, a group that committed crimes against humanity. Section 35 provides that a number of human and international rights violations render one inadmissible to Canada. As such, his wife’s application was refused based on paragraph 42(1)(a) of the IRPA.

[15] More specifically, the Officer found that the Applicant by her husband’s actions is inadmissible by reason of committing outside of Canada offences referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, SC 2000, c 24. This finding was based on complicity in crimes committed during his career in the Sindh Police Force.

[16] A National Security Screening Division [NSSD] Inadmissibility Assessment of Mr. Memon’s admissibility under paragraph 35(1)(a), conducted through the Canada Border Services Agency was submitted on June 21, 2017. The Officer relies on the findings in the NSSD Inadmissibility Assessment when determining Mr. Memon’s admissibility. The Assessment includes many reports. The Immigration Officer relies on the following in the GCMS notes:

• Transparency International, “National Integrity System: Country Report 2014: Pakistan” April 25, 2014

• Hassan Abbas, “Reforming Pakistan's Police and Law Enforcement Infrastructure,” United States Institute of Peace, August 2014

• International Rehabilitation Council for Torture Victims, “Torture in Pakistan,” September 2014

• “Torture Systematically” The News International, May 3, 2015.

• U.S Department of State, “Pakistan- Country Reports on Human Rights Practices 1999,” February 23, 2000

• Asian Human Rights Commission, “The State of Human Rights In Pakistan, 2012, Pakistan: Failure of the institutions related to the rule of law provides impunity to the perpetrators of violations human rights,” August 2012.

• Asian Human Rights Commission and Redress Organization, “Torture in Asia: The Law and Practice,” July 2013.

• Hassan Abbas, “Role of Pakistan Police in Counterinsurgency,” BROOKINGS, June 2009.

[17] The Officer relied on the following findings from the NSSD Inadmissibility Assessment in his reasons:

• The Pakistani Police force has been described by several sources as being ill-equipped, poorly trained and chronically corrupt (GCMS notes, page 2).

• Several reporting from human rights organizations have produced reports on torture by the police during the years of the Applicant’s leadership tenure (GCMS notes, page 2).

• The open source reporting from 2014 indicates that the Pakistani police regularly use torture as a tool to elicit confessions due to the lack of a more sophisticated means of investigation (GCMS notes, page 2).

• Additional reporting indicates that the primary place in which torture at the hands of Pakistani law enforcement takes place in detention, such as police stations, for which the pain perpetrators are the police (GCMS notes, pages 2-3).

• An article in the News International described the culture of torture within the Pakistani Police and indicated that no effective external mechanism for accountability was in place (GCMS notes, page 3).

• The same report mentions that “provincial police departments claim to have taken disciplinary action against delinquent officers, and indeed some action is taken in some cases,” however, such proceedings were [deemed] ineffective (GCMS notes, page 3).

• A US Department of State report [states] that the failure of successive Pakistani governments to effectively prosecute and punish abusers is the greatest obstacle to ending or reducing abuse by the police (GCMS notes, page 3).

• As mentioned by the Asian Human Rights Commission, the Pakistani police, as perpetrators of torture, have refused to register complaints of torture and abuses from citizens (GCMS notes, page 3).

• A July 2013 report on torture in Pakistan from the Asian Human Rights Commission and the Redress Organization notes: “There have been few cases where police officers in particular have been charged with torture and ill-treatment and even convicted by a court for their actions” (GCMS notes, page 3).

• However, punishments are rarely enforced and the Special Rapporteur noted that disciplinary measure, such as demotion or dismissal were often viewed as sufficient punishment for officials who had abused their authority (GCMS notes, page 3).

• There is reliable reporting during the period of the Applicant’s employment indicating the Sindh Police participate in the torture of detained suspects as a means of interrogation. Reports also indicate that this type of practice is endemic to the larger corruption of the Pakistani Police, in which actions taken to eliminate these practices are ineffective or non-substantial, such as demotion or dismissal (GCMS notes page 3).

[18] The Immigration Officer then went on to apply the test for complicity as determined in Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 [Ezokola], finding that the Applicant’s contribution to the Sindh Police Forces’ crimes against humanity was voluntary, knowing, and significant.

[19] The Officer noted that Mr. Memon voluntarily contributed to the Sindh Police Force’s crimes against humanity based on his lengthy police service, dating from 2008 to the present, and his failure to remove himself.

[20] The Immigration Officer found that Mr. Memon knowingly contributed to the crimes committed by the Pakistani Police based on his own admission that he had knowledge that the Investigative Branch (to which his group turned over suspects) committed torture. That is despite that, during his interview, Mr. Memon also explained that he has direct reports who were responsible for aspects of the police service, such as the management of police stations, and he claimed he was never involved in the operations themselves (GCMS notes, pages 3-4).

[21] The Officer also noted Mr. Memon’s senior rank and his considerable authority, which encompassed the responsibility for 1,200 officers, granting him control over all resources, legal powers, and financial powers within the district. This included his overall power and his command over subordinates who were responsible for transferring suspects to the Investigative Branch; it also included his own admission as to his knowledge of torture in the Investigative Branch, thus demonstrating that Mr. Memon was both aware that his conduct would assist in furtherance of those crimes (GCMS notes, pages 4 and 9).

[22] According to section 33 of the IRPA, inadmissibility is determined on the basis that the decision maker finds facts for which there are reasonable grounds to believe have occurred, are occurring, or may occur. In other words, the standard is less than the one generally applicable to all civil cases, the balance of probabilities, and certainly less than beyond a reasonable doubt. The Officer concluded that he had reasonable grounds to believe that Mr. Memon knowingly contributed to the crimes against humanity committed by the Pakistani Police (GCMS notes, page 5). The Officer found the Applicant, by way of her spouse Mr. Memon, inadmissible to Canada.

III. Arguments and Analysis

A. Preliminary Issue

[23] The Applicant’s Record contained an affidavit that was not before the Immigration Officer. The Respondent pleads that the affidavit should not be admissible in this application for judicial review. It does not fit within the exceptions allowed under our law given the prohibition against supplementing the record ex post facto.

[24] The Court agrees. The court of review is not the court of first view. The evidentiary record before the reviewing court is restricted to the evidentiary record that was before the administrative decision maker, and evidence that was not before the decision maker and that goes to the merits of the matter is not admissible on an application for judicial review in this Court (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 19, Bernard v. Canada (Revenue Agency), 2015 FCA 263, among others).

[25] The affidavit is inadmissible.

B. Statutory Framework

[26] Under paragraph 35(1)(a) of the IRPA, a person is inadmissible to Canada for violating human or international rights if he or she has committed an act outside of Canada that amounts to an offence under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act. Crime against humanity is defined as follows under the Crimes Against Humanity and War Crimes Act:

[27] In this case, the Officer cites Mr. Memon’s complicity in torture as one of the reasons for the Applicant’s inadmissibility. The Crimes Against Humanity and War Crimes Act adopts the definition of torture as described under the Rome Statute in the Schedule of the Act. Article 7, paragraph 2(e) of the Rome Statute defines “torture”:

[28] Through the inadmissibility of her husband, the Applicant is also inadmissible by operation of section 42 of the IRPA. Under paragraph 42(1)(a), “A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible.”

C. Applicant’s Submissions

[29] The Applicant submits that the Visa Officer erred in his application of the Ezokola test, specifically with respect to the criterion which requires a significant contribution to the furthering of the criminal purpose of an organization. The Applicant states that Mr. Memon was never involved in the Investigative Branch of the Sindh Police Force; rather he worked in the Operations Branch (Applicant’s Memorandum of Fact and Law, at para 25).

[30] The Applicant submits that the Officer misunderstood or confused Mr. Memon’s answers during the interview. The Officer did not understand, according to the Applicant, the distinctions he made between the general role of the police as opposed to Mr. Memon’s own role and duties within the police force (Applicant’s Memorandum of Fact and Law, at para 27).

[31] The Applicant contends that there is no evidence that Mr. Memon made a significant contribution to the furthering of a criminal purpose by the Sindh Police (Applicant’s Memorandum of Fact and Law at para 28). Moreover, the Visa Officer mistakenly took the general workings and problems of the Sindh Police and attributed those to Mr. Memon without properly considering the evidence as to his own unique duties and position (Applicant’s Memorandum of Fact and Law, at para 56).

[32] The Applicant submits that the Visa Officer did not properly explain why and how Mr. Memon’s activities significantly contributed to the criminal purpose of the Sindh Police. The Visa Officer made generalizations and assumptions. However, the Visa Officer did not consider or understand the actual evidence as it pertained to Mr. Memon’s rank and duties. The evidence was that he was not complicit in, and did not contribute to, the criminal purpose of some officers of the Sindh Police (Applicant’s Memorandum of Fact and Law, at para 59).

[33] The Applicant pleads that the Ezokola factor regarding the size and nature of the organization is not applicable when a police force is involved (Applicant’s Memorandum of Fact and Law, at para 31).

D. Respondent’s Submissions

[34] The Respondent contends that the first factor of Ezokola regarding the size and nature of the organization should apply in the circumstances, and contrary to the Applicant’s submissions, police forces are not exempt from consideration of that factor (Respondent’s Memorandum of Fact and Law, at paras 32-34).

[35] The Respondent submits that it was reasonable to find that there was a connection between Mr. Memon and the Pakistani Police’s torture. As noted in the GCMS notes, he oversaw officers who would hand over suspects to the Investigative Branch despite being aware of the torture and abuse of the Investigative Branch (Respondent’s Memorandum of Fact and Law, at para 35).

[36] The Respondent explains that the Applicant’s argument that Mr. Memon was in an administrative post far from where the abuse was taking place is flawed. The Federal Court has upheld as reasonable findings that police officers, for example, were complicit for their role in turning over detainees to groups that were known to torture them even though those individuals did not participate in those atrocities. (See for example: Hadhiri v. Canada (Citizenship and Immigration), 2016 FC 1284 [Hadhiri]). Such is the case here. The direct participation in torture is not required to validly find inadmissibility.

[37] The Respondent expresses that the Applicant’s claims that Mr. Memon’s length of time at the organization and opportunity to leave are not relevant to the inquiry runs contrary to fact and Supreme Court of Canada jurisprudence. Ezokola makes it explicitly clear that length of time and opportunity to leave are relevant considerations in a complicity analysis. It would have been an error for the Immigration Officer to fail to consider the extended service. The record confirms that Mr. Memon was aware of the torture in the Pakistani Police, yet there is no indication that he ever attempted to (or even contemplated) leaving the organization over his lengthy tenure as a senior member of that group (Respondent’s Memorandum of Fact and Law, at para 40).

[38] The Respondent submits that the Officer understood all of the evidence before them and concluded that it was reasonable to find the link between Mr. Memon and crimes against humanity. The Respondent contends that while the Applicant did not personally arrest individuals, he had authority over those who did, he knew that the suspects would be transferred to the Investigative Branch, and he knew that the Investigative Branch tortured detainees (Respondent’s Memorandum of Fact and Law, at paras 41-44).

E. Standard of Review

[39] There is no dispute among the parties as to the appropriate standard of review. Popoola v. Canada (Public Safety and Emergency Preparedness), 2021 FC 305, confirms that inadmissibility decisions under paragraph 35(1)(a) of the IRPA are assessed against the standard of reasonableness. A reasonable decision is one that is “based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 85 [Vavilov]). Such decision is owed deference.

[40] Not all errors or concerns about a decision will warrant the Court’s intervention. To intervene, the reviewing court must be satisfied that there are “sufficiently serious shortcomings” in the decision such that it does not exhibit sufficient justification, intelligibility and transparency. The problem(s) cannot be merely superficial or peripheral, but must be sufficiently central or significant to render the decision unreasonable (Vavilov, at para 100).

[41] The issue here is not to require a standard of perfection, but rather to satisfy the reasonableness review that there is “an understanding of the reasoning that led to the administrative decision”, thus enabling “a reviewing court to assess whether the decision as a whole is reasonable” (Vavilov, para 85). The reviewing court is tasked with reviewing the reasons, not with attempting to substitute its own reasons (Vavilov, para 96).

F. Issues

[42] There is one issue in this case: whether the Officer’s decision which found that Mr. Memon made a voluntary, significant, and knowing contribution to a crime pursuant to paragraph 35(1)(a) or criminal purpose of the Sindh Police; therefore, the finding that Mr. Memon, along with the Applicant and her family, are inadmissible to Canada under paragraph 42(1)(a), by way of paragraph 35(1)(a) of the IRPA, is reasonable.

G. The Officer’s Decision is Reasonable

[43] The foundation of reasonableness review requires that the reviewing court develop an understanding of the reasoning; the reviewing court pays deference to the Officer’s findings when the reasons provided are transparent, justified and intelligible, and fit within the confines of the facts and the law constraining the decision maker (Vavilov, paras 83, 85). The reviewing court’s starting point is the principle of restraint (Vavilov, para 13) and it adopts an appropriate posture of respect towards the legitimacy and authority of the administrative decision maker (Vavilov, para 14). Therefore, there are no grounds for the Court to legitimately interfere with the Officer’s decision. It is for an applicant to show that the decision under review does not possess the hallmarks of reasonableness: justification, transparency and intelligibility, and whether it is justified in relation with constraints that are factual and legal (Vavilov, para 99-100).

[44] The issue before the Officer was whether there were reasonable grounds to believe Mr. Memon voluntarily made a knowing and significant contribution to acts of torture alleged to have been committed by the Sindh Police Force. As already pointed out, the “reasonable grounds to believe” standard is applicable to inadmissibility findings made pursuant to paragraph 35(1)(a). The standard requires more than mere suspicion, but is a lower standard than proof on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, para 114-116; Talpur v. Canada (Citizenship and Immigration), 2016 FC 822 [Talpur]). Is there an objective basis for the belief based on compelling and credible information (Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 FCR 344, para 89)? Is there a credibly based probability, a bona fide belief in a serious possibility based on credible evidence (Chiau v. Canada (Minister of Citizenship and Immigration) (C.A.), 2000 CanLII 16793 (FCA), [2001] 2 FC 297)?

[45] In Ezokola, the Supreme Court explicitly rejected the concept of “guilt by association”, finding that “individual criminal responsibility has not been stretched so far as to capture complicity by mere association or passive acquiescence.” Rather, complicity is based on an intentional and knowing contribution to a group’s crime or criminal purpose (Ezokola, at paras 53, 68).

[46] The Officer explicitly acknowledged that there is no evidence to suggest that Mr. Memon himself directly committed crimes against humanity. However, this does not undermine the Officer’s conclusion, as there were reasonable grounds to believe Mr. Memon contributed to the crimes of the Sindh Police Force. A similar outcome was found to be reasonable by Justice Manson in Talpur.

[47] Complicity arises by contribution, and while there must be a link between the individual and the criminal purpose of the group, an individual may be found complicit in international crimes without being present at or physically contributing to those crimes (Ezokola, at paras 7, 8, 77). This link is established where the Officer has reasonable grounds to believe that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose (Ezokola, at para 6). Contribution does not equate with participation.

[48] The Officer recognized that in order to establish his complicity in crimes against humanity, it was not necessary to prove that Mr. Memon had personally participated in said crimes against humanity, including the documented torture. Rather, his contribution to the organization’s crimes had to be assessed on the basis of the criteria set out by the Supreme Court of Canada in Ezokola to determine whether there was a voluntary and significant contribution to the crimes qualifying as crimes against humanity. The Officer’s assessment thus considered whether Mr. Memon’s position of authority in the district of Karachi, responsible for roughly 1,200 police officers, and his longstanding involvement in the Sindh Police force provided those reasonable grounds to support a finding of complicity, pursuant to the standard set out in Ezokola.

[49] To be found culpably complicit, Mr. Memon’s contribution to the crime or criminal purpose must be (1) voluntary; (2) knowing; and (3) significant (Ezokola, at paras 86-90).

[50] First, I find it was reasonable for the Officer to conclude that there was both a voluntary and a knowing contribution to the organization’s crimes or criminal purpose. On the issue of voluntariness, there was no evidence that Mr. Memon was forced into employment of the police force, or that it was obligatory that he remain. Mr. Memon joined the police force in 2008 moving up the ranks to Senior Superintendent in 2013. Second, Mr. Memon expressed multiple times that he knew of the torture practices within the Sindh Police Force (GCMS notes, page 4).

[51] The central issue in this case comes down to whether it was reasonable for the Officer to have found that Mr. Memon’s contribution was “significant” given the evidence.

[52] Applying the Ezokola framework, to determine the significant contribution, the Officer examined the six factors identified in Ezokola (at para 91):

1. the size and nature of the organization;

2. the part of the organization with which the person was most directly concerned;

3. the person’s duties and activities within the organization;

4. the person’s position or rank in the organization;

5. the length of time the person was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and

6. the method by which the person was recruited and the person’s opportunity to leave the organization.

[53] The very reason for the Ezokola framework is to prevent against resorting to guilt by association. Ultimately, the decision maker must be able to show what the significant contribution is, as opposed to relying on the mere presence in the organization. Suspicions are not enough. Not any contribution will do. The Court articulates the requirement in paragraphs 88 to 90 of Ezokola:

[88] Given that contributions of almost every nature to a group could be characterized as furthering its criminal purpose, the degree of the contribution must be carefully assessed. The requirement of a significant contribution is critical to prevent an unreasonable extension of the notion of criminal participation in international criminal law.

[89] To be complicit in crimes committed by the government, the official must be aware of the government’s crime or criminal purpose and aware that his or her conduct will assist in the furtherance of the crime or criminal purpose.

[90] In our view, this approach is consistent with the mens rea requirement under art. 30 of the Rome Statute. Article 30(1) explains that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”. Article 30(2)(a) explains that a person has intent where he “means to engage in the conduct”. With respect to consequences, art. 30(2)(b) requires that the individual “means to cause that consequence or is aware that it will occur in the ordinary course of events”. Knowledge is defined in art. 30(3) as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events”.

This is the law that constrains the decision maker. The degree of contribution must be carefully assessed and the official must be aware that the “conduct will assist in the furtherance of the crime or criminal purpose”. Mere association falls short of complicity.

[54] The Officer appropriately considered the six factors, and the analysis accords with the Supreme Court’s guidance at paragraphs 94 to 100 of Ezokola. The analysis is contextual and the determination as to which factors are most influential is discretionary. The Officer placed significant weight on the 4^th and 5^th factors of the Ezokola framework.

[55] The Officer underscored the importance of Mr. Memon’s senior role within the Sindh Police force as Senior Superintendent. With respect to the length of time the claimant has been in the organization, the Officer noted that Mr. Memon worked in various positions of authority in the Sindh Police force starting in 2008 (GCMS notes, page 3). He goes on to state that “there is reliable reporting during the period of the Applicant’s employment indicating the Sindh Police participate in the torture of detained suspects as a means of interrogation. Reports also indicated that this type of practice is endemic to the larger corruption of the Pakistani Police, in which actions taken to eliminate these practices are ineffective or non-substantial such as demotion or dismissal” (GCMS notes, page 3).

[56] With regards to Mr. Memon’s knowledge of the crimes against humanity perpetrated by the Sindh Police Force, during his interview Mr. Memon stated that he knew of suspects getting hurt during interrogations. When asked whether he was aware of the Sindh police force torturing prisoners as a form of interrogation, Mr. Memon responded that he was aware of this (GCMS notes, page 4).

[57] Based on the documentary evidence, it is clear that there has been widespread, routine use of torture within the Sindh Police Force. Mr. Memon does not question the above findings. Rather he argues that he did not directly participate in the torture. Contrary to what the Applicant submits, given his responses, it was reasonable for the Officer to conclude that Mr. Memon knew of and was exposed to the ongoing and widespread incidents of torture.

[58] At the very least, the Applicant has the equivalent of knowledge as he displayed wilful blindness, also described as “deliberate ignorance.” In R v Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, the Supreme Court of Canada ruled, at paragraph 103 of its judgment, that a finding of wilful blindness, when it is made, requires an affirmative answer to the question: Did the accused “shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” If Mr. Memon did not personally and directly participate in these crimes, his wilful blindness of the widespread torture as well as his willingness to continue to refer prisoners to the Investigative Branch that conducted the torture in the organization make him complicit in these crimes. Because of his willingness to remain in ignorance and continue to deliver prisoners to detention when it can almost be said that he actually knew prisoners would be subjected to torture, constitutes a relevant consideration of Mr. Memon’s significant contribution.

[59] The Supreme Court held in Ezokola that to establish the requisite link between the individual and the group’s criminal conduct, the accused’s contribution does not have to be “directed to specific identifiable crimes” but can be directed to “wider concepts of common design, such as the accomplishment of an organisation’s purpose by whatever means are necessary including the commission of war crimes” (Ezokola, at para 87).

[60] I do find the knowledge of torture practices undertaken by the Sindh Police, alongside the position of considerable authority in the department, to weigh against the Applicant’s spouse as he claims responsibility for the 1,200 officers in the district, whose responsibilities include the detainment and transfer of suspects for interrogation. Mr. Memon’s knowledge of these practices in conjunction with his authority as a Senior Superintendent, responsible for roughly 1,200 police officers who indirectly participate in the practice through the transfer of suspects, speaks to his complicity in the practice of torture itself.

[61] While the Applicant did not personally arrest individuals, he had authority over those who did, he knew that the suspects would be transferred to the Investigative Branch, and he knew (or at least was wilfully blind) that the Investigative Branch tortured detainees.

[62] Indeed, this Court has upheld as reasonable the finding that police officers were complicit for their role in turning over detainees to groups that were known to torture them even though those individuals did not participate in those atrocities (Hadhiri, supra; see also the Respondent’s Memorandum of Fact and Law at para 38).

[63] The Applicant attempts to distinguish from Talpur, where the Applicant was found to be inadmissible due to his “operational and direct role in carrying out arrests and interrogations.” In the case at bar, Mr. Memon had no such operational role (Applicant’s Memorandum of Fact and Law at paras 48-50). However, it is not necessary for the individual to have personally engaged in criminal activity or to have been physically present during the commission of the crime.

[64] In light of the documentary evidence in the record, Mr. Memon was aware of the nature and extent of the criminal activities of the Sindh police force. The facts indicate that he could not have been in his department and been completely unaware of the acts of torture perpetrated by his own colleagues. The facts in the record also demonstrate that he voluntarily became a police officer in 2008, and he remains in the organization, without disassociating himself from the group. According to the material facts in the record, there were reasonable grounds to believe that the Applicant’s spouse was complicit in crimes against humanity.

[65] Finally, as stated by the Supreme Court of Canada in Canada (Minister of Employment and Immigration) v. Chiarelli, 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711 at p 733 [Chiarelli], and Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 at para 46, “The most fundamental principle of immigration law is that non‑citizens do not have an unqualified right to enter or remain in the country.” It follows, says the Court in Chiarelli, that “Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non‑citizens will be permitted to enter and remain in Canada” (page 733-734). Thus, the threshold for inadmissibility can be made to be “reasonable grounds to believe.” This threshold must be respected by decision makers as being the will of Parliament. The Applicant’s permanent resident application is not a right but a privilege, and the Officer reasonably applied his discretion when analysing the Applicant’s application finding reasonable grounds to believe that Mr. Memon is inadmissible for crimes against humanity under paragraph 35(1)(a) of the IRPA, rendering the Applicant inadmissible to Canada under paragraph 42(1)(a).

IV. Conclusion

[66] I am satisfied that the Officer reasonably weighed the relevant factors in determining that Mr. Memon made a knowing and significant contribution to the crimes committed by the Sindh Police Force.

[67] I do not find that the Officer applied and considered the factors outlined in Ezokola in a mechanical manner without proper analysis. On the contrary, the Officer appropriately concentrated on the Mr. Memon’s role, and took into account the material aspects of that role in conjunction with documentary evidence, finding there was a reasonable basis to conclude Mr. Memon voluntarily and knowingly contributed to the crimes committed by the Sindh Police.

[68] On the evidentiary standard of “reasonable grounds to believe”, and given the deference owed the Officer’s decision, I find the reasons were transparent, intelligible and justified, in view of the facts and law constraining the Officer.

JUDGMENT in IMM-5375-23

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed; and

2. There is no question for certification.

"Yvan Roy"

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-5375-23
STYLE OF CAUSE:	SUMERA MEMON v THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
PLACE OF HEARING:	Vancouver, British Columbia
DATE OF HEARING:	September 25, 2024
JUDGMENT AND REASONS:	ROY J.
DATED:	december 12, 2024

APPEARANCES:

Barinder Sanghera	For The Applicant
Philippe Alma	For The Respondent

SOLICITORS OF RECORD:

Sanghera Sandhar Law Group Barristers and Solicitors Surrey, British Columbia	For The Applicant
Attorney General of Canada Vancouver, British Columbia	For The Respondent