OTTAWA, ONTARIO, November 21, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
Background
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (“IRPA”), S.C. 2001, c. 27, for judicial review of a decision of the Citizenship and Immigration Officer (“Immigration Officer”) dated December 5, 2005, wherein the officer found that the Applicant was inadmissible to Canada pursuant to s. 34(1) of the IRPA.
[2] Zaheer Mohiuddin Mohammed (the “Applicant”), a Convention refugee, applied for permanent residence in Canada, but his application was rejected on December 5, 2005, pursuant to s. 34(1)(f) of the IRPA based on his membership in the Altaf Faction of the Mohajir Quami Movement (“MQM-A”). The Department of Citizenship and Immigration alleged that it had information that the MQM-A had engaged in acts of terrorism. The Applicant admits to being a member of the MQM-A, but disputes that MQM-A is a terrorist organization.
[3] A previous s. 44(1) report dated May 21, 2002, concluded that the Applicant was inadmissible due to his membership in the MQM. The Respondent then consented to the matter being re-determined and the file was re-opened.
[4] The Applicant submits that the MQM-A is a legal political party in Pakistan and the organization had never engaged in acts of terrorism, although individual members may have engaged in acts of terrorism. According to the Applicant, the other faction of MQM, the Haqiqi (MQM-H), did engage in acts of terrorism.
[5] In the re-determination, the Immigration Officer stated:
I have considered the documentary evidence presented by counsel on record on behalf of Mr. Mohammad, his admission of his membership with the MQM (Altaf faction) and his support of the parties’ ideology and principals. It is the officer’s opinion that there are reasonable grounds to believe that Mr. Mohammad is a member of the MQM Altaf group, an organization that there are reasonable grounds to believe is or was engaged in terrorist activity.
Mr. Zaheer Mohiuddin Mohammad has been reported under 34(1)(F) of the Immigration and Refugee Protection Act. Further, taking into account the facts of the case, and the responses from applicant, there has been a direct request for Ministerial Relief made by the applicant, and the case is referred to the Minister.
[6] The Applicant was invited to make submissions under s. 34(2) of the IRPA and he did so, seeking the Minister’s opinion that his admission would not be detrimental to national interest. The Immigration Officer also made a s. 44(1) report which is part of the Tribunal Record. However, this is not being acted upon and is held in abeyance pending the Minister’s decision under s. 34(2) of the IRPA.
[7] On December 14, 2005, the Applicant filed an application for leave and judicial review of the decision of the Immigration Officer that he was inadmissible pursuant to s. 34(1) of the IRPA. The request for Ministerial relief is still pending.
Issue
[8] Only one issue was argued before me, namely: Is the decision of the Immigration Officer under s. 34(1) of the IRPA subject to judicial review?
Position of the Parties
[9] The Respondent argues that this application is premature. It is the Respondent’s contention that the Immigration Officer’s decision is an interlocutory decision and that no judicial review is available until the Minister has rendered a decision under s. 34(2). According to the Respondent, if the decision of the Minister is in the Applicant’s favour no review is necessary. However, should the s. 34(2) decision go against the Applicant, he can at that time seek a review of the Minister’s decision under 34(2) and/or a review of the Immigration Officer’s decision under s. 34(1).
[10] The Applicant argues that these are two different decisions and that even a positive decision of the Minister under s. 34(2) won’t wipe out the finding under s. 34(1) that the Applicant belongs to a terrorist organization. The Applicant relies on the decision of Madame Justice Mactavish in Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1174.
Analysis
[11] Both sides agree that this case is on all fours with Ali, supra. The Respondent urges me not to follow that case, or if I apply that case, to recertify the question Justice Mactavish certified, but which the Respondent never appealed. He contends that it is the practice of the Respondent following a finding of non-admissibility under s. 34(1) not to proceed with a removal decision when a s. 34(2) application is outstanding. He points to the CIC Immigration Manual chapter IP 10 which provides in s.10:
Enforcement proceedings are not automatically held in abeyance due to a request for ministerial relief. This would include the writing of the A44(1) report, the review of the report, and the admissibility hearing. However, when deciding whether or not to refer the report immediately to the Immigration Division pursuant to A44(2), the Minister’s delegate should consider all the circumstances of the case, including the request for relief. If positive relief recommendation is being considered, further enforcement action may be suspended.
(Underlining added)
[12] According to the Respondent, IP 10 corresponds to the scheme of the Act and Justice Mactavish erred when she held otherwise.
[13] In Ali, supra Justice Mactavish held at paragraphs 39-46:
Is the Finding of the Immigration Officer under Sub-section 34(1) an Interlocutory One?
39 It is true that section 34 deals with the overall question of admissibility to Canada, and that no final determination with respect to Mr. Ali's admissibility will have been made until such time as his application for Ministerial relief is finally disposed of. That said, it does not necessarily follow that the determination by the immigration officer pursuant to sub-section 34(1) that there are reasonable grounds to believe that Mr. Ali is a member of a terrorist organization is interlocutory in nature.
40 There are two components to section 34 of IRPA. When read in conjunction with section 33, sub-section 34(1) contemplates a determination being made by an immigration officer as to whether, amongst other things, there are reasonable grounds for believing that an applicant is a member of a terrorist organization.
41 Sub-section 34(2) contemplates that a different decision-maker - that is the Minister herself - consider whether the continued presence in Canada of a foreign national such as Mr. Ali would be detrimental to the national interest.
42 A sub-section 34(2) inquiry is directed at a different issue to that contemplated by sub-section 34(1). The issue for the Minister under sub-section 34(2) is not the soundness of the officer's determination that there are reasonable grounds for believing that an applicant is a member of a terrorist organization - that determination will have already been made. Rather, 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.
43 In other words, sub-section 34(2) empowers the Minister to grant exceptional relief, in the face of a finding that has already been made by the immigration officer.
44 As a result, I am satisfied that the decision of the immigration officer in issue here did dispose of a substantive issue raised on Mr. Ali's application for permanent residence - that is, whether there are reasonable grounds to believe that he is a member of a terrorist organization. This is not a preliminary or interlocutory step in the process. It is a finding of inadmissibility, subject to the grant of exceptional relief based upon a consideration of the national interest.
45 This view is supported by the fact that once the May 28, 2003 interview with Mr. Ali was completed, the immigration officer felt it appropriate to prepare a section 44 report confirming her opinion that Mr. Ali was inadmissible.
46 I am also not persuaded that a positive finding by the Minister in relation to Mr. Ali's request for Ministerial relief would have the effect of rendering this application unnecessary or moot. A finding by the Minister under sub-section 34(2) that Mr. Ali's continued presence in Canada would not be detrimental to the national interest would allow Mr. Ali to be granted permanent residence, which is, after all, what he is seeking. However, Mr. Ali would still be left with the finding that there are reasonable grounds for believing that he is a member of a terrorist organization. This is a very serious finding, and one which may well have ramifications for Mr. Ali in the future.
[14] I find Justice Mactavish’s ruling very persuasive. I also note that IP 10 does not advance the Respondent’s position. As the above quoted excerpt shows, it nowhere states categorically that a section 44 report will not be referred to the immigration division when relief under s. 34(2) is sought. It merely suggests that all circumstances will be considered.
[15] I would further note that there is no time frame set out in s. 34(2) as to when an application to the Minister under that section may be brought or when the Minister may exercise his rights under that section. This, in my mind, further undermines the Respondent’s argument that the decision under s. 34(1) is interlocutory once relief has been sought under s. 34(2). After all, relief may be sought and granted even after judicial review has been commenced. (See Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 121.)
[16] Thus, for both reasons of judicial comity and because I agree with the logic of her arguments, I will follow the ruling of Justice Mactavish in Ali, supra.
[17] No other point of substance was argued before me. Both parties agree that this case is practically parallel to Ali, supra. In that case, Justice Mactavish came to the conclusion:
68. In this case, the officer’s reasons do not provide an adequate basis for her finding that there are reasonable grounds to believe that the MQM-A is a group engaged in terrorist activities. In particular, there is no analysis of the IRB report, and no identification of which activities on the part of the MQM-A the officer considers to be terrorist in nature. In my view, in light of the seriousness of the finding in issue and its consequences for Mr. Ali, it is incumbent on the officer to provide some explanation for her finding that there are reasonable grounds to believe that the MQM-A is a terrorist organization. Her failure to do so constitutes a reviewable error.
[18] Equally, in this case, the officer offered no analysis for his reasonable beliefs. Accordingly, for the reasons given by Mactavish J., the decision cannot stand. This application for reconsideration will succeed.
Certified question
[19] Justice Mactavish certified the following question:
Is a determination under sub-section 34(1) of the Immigration and Refugee Protection Act a judicially reviewable decision if an application for Ministerial relief under sub-section 34(2) is outstanding and no decision has been made on the application for landing?
[20] The Respondent did not take that question to the Federal Court of Appeal and no explanation was provided for not doing so. Counsel for the Respondent simply stated that the Respondent should have appealed but failed to do so. No compelling public policy issue has been advanced. The purported operational policy of the Respondent is not reflected in the immigration manual. This is an issue the Applicant did not create and one that he had every reason to believe was settled by the jurisprudence. To revisit this issue now would considerably prolong the time the Applicant has to wait before the issue of his admissibility is settled. For all of these reasons, I am not prepared to certify the question again.
ORDER
THIS COURT ORDERS that this application for judicial review be granted. The decision of Officer Argyrides of December 5, 2005, is set aside and the matter is referred back to another officer for reconsideration.
“Konrad W. von Finckenstein”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7498-05
STYLE OF CAUSE: Mohammed
v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 20, 2006
REASONS FOR
ORDER AND ORDER: von FINCKENSTEIN J.
DATED: November 21, 2006
APPEARANCES:
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Mr. Lorne Waldman |
FOR THE APPLICANT |
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Mr. Lorne McClenaghan |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Waldman & Associates Toronto, Ontario |
FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |