Ottawa, Ontario, January 3, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This judicial review raises an issue of comity or consistency between factual findings by Immigration and Refugee Board members which are based on exactly the same evidentiary record. In one case a member held an organization not to be engaged in terrorism while in the instant case, on the very same evidence, the member found that the organization had engaged in terrorism.
II. BACKGROUND
[2] The Applicant was born in Pakistan to a Mohajir (the Pakistani word for “refugee”) family. While at college he attended meetings of a Mohajir student organization, which organization ultimately became the Mohajir Quomi Movement (MQM).
[3] The Applicant contended that the original MQM was dedicated to defending the Mohajir against discrimination from the Sindh and Punjabi majority in Pakistan.
[4] In 1990 the MQM divided into the MQM-A (the main group to which the Applicant continued to belong) and the MQM-H (the dissident offshoot).
[5] The Applicant testified that, as a result of a 1992 crackdown by Pakistani government forces against the MQM and other dissident groups, he was forced to go into hiding and only worked for the MQM-A in the 1993 election. During that election he was kidnapped by the MQM-H and held for five days.
[6] The MQM-H continued to monitor him and he was forced to pay it 3,000 rupees a month, presumably to avoid further physical harm. In 1994, after a demand for even more money, he hid and fled to Canada where he claimed refugee status.
[7] On February 15, 1999, the Applicant was found to be a refugee.
[8] On June 18, 2001, he applied for permanent residence, and as a spouse of a Canadian citizen for exemption from the immigrant visa requirements. During this process he was interviewed by two officials about his involvement with the MQM-A.
[9] One of the officers wrote a report under s. 34(1) of the Immigration and Refugee Protection Act (IRPA) alleging that the Applicant was inadmissible on security grounds for “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts” which include acts of subversion by force and terrorism.
[10] The Applicant’s case was referred to the Immigration and Refugee Board where the Board found that the Applicant was a member of the MQM-A (a matter readily admitted by the Applicant) and that there were reasonable grounds to believe that the MQM-A was engaged in acts of terrorism between 1990 and 1992 (a matter vigorously challenged by the Applicant).
III. ANALYSIS
[11] The finding that the MQM-A was engaged in terrorism, or at least that there were reasonable grounds to believe so, was based exclusively on documentary evidence, essentially a package of documents, which included material from the Research Directorate of the Immigration and Refugee Board.
[12] In reaching a determination as to “reasonable grounds to believe” that an organization engaged in terrorism, Justice Lemieux concluded that the Minister’s burden requires specificity of who, what, when, where and in what circumstances the subject organization could be identified as being engaged in terrorism. (Fuentes v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 540 (F.C.T.D.) (QL))
[13] At the time of the Applicant’s hearing before the Board, another Board member in a decision regarding Javed Memon (A5-00256) had examined the same package of documents as were before the Applicant’s Board and reached the conclusion that the evidence was insufficient to support a reasonable belief that the MQM-A had engaged in terrorism between 1990 and 1992.
[14] The parties before this Court both confirmed that the packages of documentary evidence in the two cases were the same, the timeframe the same, and the issue to be determined was the same.
[15] In the Board’s detailed reasoning as to why it accepted the Respondent’s conclusion of reasonable grounds to believe and in its review of the documentary evidence, it makes no reference to the reasoning in the Memon case or explain on what basis it differed from the Memon case.
[16] While the parties accept that the standard of review on whether an organization engaged in certain activities is patent unreasonableness, that standard of review does not resolve this case (even if the Court accepted this standard).
[17] There is no strict legal requirement that the Board members must follow the factual findings of another member. This is particularly so where there is one of the “reasonableness” standards in play – reasonable people can reasonably disagree.
[18] What undermines the Board’s decision is the failure to address the contradictory finding in the Memon decision. It may well be that the member disagreed with the findings in Memon and may have had good sustainable reasons for so doing. However, the Applicant is entitled, as a matter of fairness and the rendering of a full decision, to an explanation of why this particular member, reviewing the same documents on the same issue, could reach a different conclusion.
[19] The failure to explain the basis for the different conclusion undermines the integrity of Board decisions and gives them an aura of arbitrariness which is no doubt not intended nor is it acceptable.
[20] Under these circumstances, the Board’s decision did not satisfy the “specificity” test outlined in Fuentes.
[21] Therefore, the decision under review is patently unreasonable and breaches the principles of fairness. It will be quashed and the matter remitted to a different panel of the Board for a new determination. Given the reasons for granting the judicial review, there is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is granted, the Board’s decision is quashed and the matter is remitted to a different panel of the Board for a new determination.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2736-06
STYLE OF CAUSE: MOHAMMAD ASHRAF SIDDIQUI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 21, 2006
APPEARANCES:
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Mr. Darryl W. Larson
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Mr. R. Keith Reimer Mr. Scott Nesbitt
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SOLICITORS OF RECORD:
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EMBARKATION LAW GROUP Barristers & Solicitors Vancouver, British Columbia
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia
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