One official's 'refugee' is another's 'terrorist'
IRB criticized for dissimilar rulings on similar cases
Adrian Humphreys, National Post
Published: Wednesday, January 17, 2007
Two members of the same foreign organization who applied for refugee status in Canada have received dramatically different judgments: One was declared a member of a terrorist group, the other accepted as a legitimate refugee.
The vast discrepancy between decisions in remarkably similar cases -- based on the same package of government evidence -- highlights the difficulties of handling security cases and has drawn judicial consternation.
"The packages of documentary evidence in the two cases were the same, the time frame the same, and the issue to be determined was the same," writes Michael L. Phelan, a Federal Court of Canada judge, in a judgment published yesterday.
"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," he ruled.
"The failure to explain the basis for the different conclusion undermines the integrity of [Immigration and Refugee Board] decisions and gives them an aura of arbitrariness which is no doubt not intended nor is it acceptable."
The answer, for Judge Phelan, was to send the case of Mohammad Ashraf Siddiqui -- in which the Pakistan-based Mohajir Quomi Movement (MQM) was found to be an organization that engaged in terrorism -- back to the Immigration and Refugee Board for a fresh hearing.
The case of the second man, Javed Memon -- in which evidence of terrorist involvement by the MQM was dismissed -- also remains in dispute.
The government has appealed that decision, with hearings on the matter pending.
The divergent assessments of the same evidence on such an important issue shocks a leading terrorism researcher.
"The notion of terrorism is fairly straightforward -- it is ideologically or politically motivated violence directed against civilian targets. I'm surprised that there are disagreements among judges," said Professor Martin Rudner, director of the Canadian Centre of Intelligence and Security Studies at Ottawa's Carleton University.
"There is the famous statement: 'One man's terrorist is another man's freedom fighter.' But that is grossly leading. It assesses the validity of the cause when terrorism is an act. One can have a perfectly beautiful cause and yet if one commits terrorist acts, it is terrorism regardless," he said.
At the heart of the two Vancouver cases is the MQM, a political party in Pakistan with a controversial past, including involvement in sectarian strife and infighting.
Mr. Siddiqui was born in 1969 in Pakistan. While at college, he attended meetings of a student organization, which later became the MQM, he told immigration officials.
In 1990, the MQM split into two factions, known as the MQM-A and the MQM-H. Both Mr. Siddiqui and Mr. Memon said they were members of the MQM-A.
Mr. Siddiqui said he worked for the MQM-A in the 1993 election, during which he was kidnapped by members of the rival MQM-H and held for five days, he said. After his release, he was forced to pay the organization 3,000 rupees a month.
In 1994, after a demand for more money, he fled to Canada where he claimed refugee status. In 1999, he was found to be a refugee. He married a Canadian woman and settled in British Columbia.
In 2001, however, he applied for an exemption to the immigrant visa requirements,
an application that reignited the government's interest in his past with the MQM-A and sent him to the IRB for an admissibility hearing. Mr. Memon's story is similar.
He was born in 1964 in Pakistan and is also well-educated.
He told the IRB that he became influenced by the MQM in 1992 and then joined in 1994.
"Because they were doing good work and they were helping the poor people, especially for education and the people who were sick, they were opening hospitals," he said, according to a transcript of his testimony before the IRB.
He worked on donation drives and membership drives and attended demonstrations, he told the IRB, until he, under pressure, left for Canada in 1998.
He too married a Canadian woman and runs a restaurant in B.C.
Neither man hid his association with the MQM-A from the Canadian government when they applied for their refugee status and both said at their hearings that they were involved in only peaceful protests and political activity.
Both men rejected knowledge of MQM-A's involvement in terrorist or violent acts and both said they do not believe such accounts.
In both cases, the IRB adjudicators heard the government's package of evidence regarding the MQM-A, including allegations of violent confrontations and the running of torture chambers targeting dissidents and opponents.
The information included correspondence with the MQM, documents from Amnesty International, the British government, the Office of International Criminal Justice, the IRB's Research Directorate, Jane's Intelligence Review, media reports, and others.
Daphne Shaw Dyck, an adjudicator with the IRB, ruled in Mr. Siddiqui's case.
"I have reasonable grounds to believe that the MQM under the firm control of [Altaf ] Hussain is not only a legitimate political party but also an armed opposition group that commits acts of violence," she ruled.
"In my view there is sufficient specificity in the kidnappings, murders and rapes and other acts of torture that took place as a result of torture chambers run by the MQM."
Ms. Shaw Dyck also ruled that the MQM tried to "intentionally cause death or serious bodily injury to party dissidents or political opponents in order to intimidate them. Thus the facts that I have reasonable grounds to believe fit the definition of terrorism."
Leeann King heard Mr. Memon's case. She ruled otherwise on the same evidence.
"I find, however, that the Minister's evidence is insufficient to show that the MQM-A has committed terrorist acts. I consider the documentary evidence is either not credible or too vague to find there are reasonable grounds to believe the MQM-A has committed terrorist acts."
Melissa Anderson, a spokeswoman for the IRB said each of its decisions stands on its own merits and that the appeals processes are in place when a party believes errors were made. The Federal Court backed that up.
Judge Phelan said in his ruling that there is "no strict legal requirement" that an IRB adjudicator follow the factual findings of another member.
"What undermines the [IRB's] decision [in the Siddiqui case] is the failure to address the contradictory finding in the Memon decision."
He ruled that Mr. Siddiqui is entitled, as a matter of fairness, to an explanation of why, when two IRB adjudicators "reviewing the same documents on the same issue, could reach a different conclusion."