Toronto, Ontario, June 20, 2007
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
(CANADA BORDER SERVICES AGENCY)
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Honourable Anne McLellan, Minister of Public Safety and Emergency Preparedness, dated January 16, 2006, refusing Mr. Qazi’s request for Ministerial “relief” under s.34(2) of the Immigration and Refugee Protection Act (“the Act”).
[2] Mr. Qazi arrived in Canada on April 6, 1996 and was found to be a Convention refugee in 1997 because of persecution by state authorities in Pakistan due to his membership in the MQM-A. He subsequently applied for permanent residence in Canada on February 3, 1998. Following an interview process, Mr. Qazi was deemed inadmissible pursuant to s.34(1)(f) of the Act on a finding that there are reasonable grounds to believe the MQM-A is a organization that engaged in terrorism in Pakistan between 1992 and 1996. As a result, Mr. Qazi applied for relief from this finding pursuant to s.34(2) of the Act:
|
34. (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
|
34. (2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national. |
[3] With respect to the application under s.34(2), Mr. Qazi was interviewed by Ms. Dello, an immigration officer, who subsequently filed a report providing a full description of the circumstances of Mr. Qazi’s association with the MQM-A, both in Pakistan and in Canada. Ms. Dello recommended that positive Ministerial discretion be applied. However, in a Briefing Note to the Minister, Ms. Dello’s superior, Mr. Jolicoeur, arrived at the conclusion that positive discretion should not be applied and gave this recommendation to the Minister. The Minister accepted this recommendation with the words, “I concur.” It is agreed that the contents of the Briefing Note constitute the Minister’s reasons for decision.
[4] The start point in the decision making presently under review is the finding of reasonable grounds with respect to the MQM-A based on Mr. Qazi’s membership in the organization in Pakistan. The end point is how this membership was conducted in Canada. With respect to this conduct, the following paragraphs in the Briefing Note are critically important:
We recommend that you do not grant Ministerial Relief to Mr. Qazi as per section 34(2) of IRPA to overcome his inadmissibility pursuant to section 34(1)(f) of IRPA. Section 34(2) states: “The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.” We are of the opinion that Mr. Qazi has not demonstrated that his presence in Canada is not detrimental to the national interest.
Our rationale for this recommendation is detailed in the considerations above. Mr. Qazi increased his responsibilities within the organization while in Pakistan and remained loyal and active with the organization for five years following his arrival in Canada. We are of the opinion that it would be detrimental to Canada’s national interest to grant Ministerial Relief to an individual who clearly continued to support a terrorist organization while in Canada.
(Certified Tribunal Record, pg. 4)
[5] The issue for determination is whether the evidence on the record before Mr. Jolicoeur supports the findings that Mr. Qazi “remained active and loyal with the [MQM-A] for five years following his arrival in Canada” and he is an individual “who clearly continued to support a terrorist organization in Canada”. For the reasons which follow, in my opinion, the evidence does not support these findings.
[6] The findings constitute an inference that, while in Canada, Mr. Qazi was active and loyal, and gave support to the activities of the MQM-A in Pakistan. There is no evidence to support this inference.
[7] It is true that Mr. Qazi remained a “member” of the MQM-A while in Canada, but the evidence only supports the finding that the quality of this “membership” was dedicated to social and community service activity in Canada, and was in no way connected to the MQM-A’s activities in Pakistan. The evidence supports a finding that Mr. Qazi’s break with this membership was based on the personal reason that he lost interest in the individuals with whom he had been associating. In my opinion, when the whole of the evidence is considered, there is no evidence to substantiate the statement that Mr. Qazi “clearly continued to support a terrorist organization while in Canada.”
[8] As a result, I find that the Minister’s decision is patently unreasonable and, therefore, is rendered in reviewable error.
ORDER
Accordingly, I set aside the Minister’s decision presently under review.
There are no questions to certify.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-864-06
STYLE OF CAUSE: WAKEEL AHMED QAZI v. THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS (CANADA BORDER SERVICES
AGENCY)
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 19, 2007
APPEARANCES:
Chantal Desloges FOR THE APPLICANT
Stephen H. Gold FOR THE RESPONDENT
SOLICITORS OF RECORD:
Chantal Desloges
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT