Canada: Do Not Enter! Canada Is Rejecting Potential Immigrants Who Have Broken Foreign Export Controls Laws

Last Updated: September 19 2016
Article by Cyndee Todgham Cherniak

On August 30, 2016, the Federal Court of Canada issued its judicial review decision in Mahmood Sajid v. The Minister of Citizenship and Immigration, 2016 FC 981.  The Federal Court dismissed a judicial review application filed by Mr. Sajid to review a decision by Canada’s Refugee Protection Division (RPD) to vacate Mr. Sajid’s refugee protection.  The RPD vacated Mr. Sajid’s refugee protection due to omissions or withholdings of information. In particular, Mr. Sajid was alleged to have committed serious non-political crimes relating to the illegal export of firearms from the United States.

Mr. Sajid, a citizen of Pakistan, said he left Pakistan in 2000 due to persecution based on his sexual orientation.  He had moved to the United States and lived there without status until he crossed the border into Canada on May 15, 2014.  On June 13, 2014, he claimed refugee protection in Canada, which was granted on September 12, 2014.

However, after the initial approval of refugee protection, it was discovered that Mr. Sajid had been indicted by a Grand Jury in the United States for conspiring to export high caliber firearms and related accessories to Pakistan.  Canada’s Minister of Citizenship and Immigration informed the Court that the activities undertaken by Mr. Sajid in the United States would be violations of Canada’s export controls laws if committed in Canada.  In particular, these U.S. offences would equate under Canadian law to:

  1. Conspiracy of Exporting knowing it is unauthorized of a firearm, as described in paragraphs 465, 103(1)(a) of the Canadian Criminal Code, punishable by a maximum term of 10 years imprisonment;
  2. Export or attempt to export, as described at paragraphs 13 and 19 of the Export and Import Permits Act, punishable by a maximum term of 10 years imprisonment;
  3. False or misleading information, and misrepresentation, as described at paragraphs 17 and 19 of the Export and Import Permits Act, punishable by a maximum term of 10 years imprisonment.

Mr. Sajid had stated on his refugee protection application that he had not been convicted of and was not currently charged with, or on trial for, or party to a crime or offence, or subject to any criminal proceedings in another country.  So, this was false information provided in the the application form – a big no-no.

Upon further information gathering, the RPD learned that:

  1. Mr. Sajid withheld that he used an alias while living in the United States. The Applicant is referred to in the Indictment as “SAJID MAHMOOD, a/k/a Shawn Chudhary”.
  2. Mr. Sajid withheld that he had been asked to voluntarily leave the United States. The Applicant’s answer in the refugee claim form to which he wrote “No” to the question “Have you [ever] been refused admission to, or ordered to leave, Canada or any other country?”. The RPD relied on a Report from US Homeland Security, dated October 7, 2014, which states that “a Warrant of Removal/Deportation was issued for MAHMOOD”.
  3. There was an inconsistency as to when Mr. Sajid stopped work at the pizza restaurant where the two other alleged co-conspirators worked.
  4. Mr. Sajid was aware of the investigation into the alleged criminal activities in which he and the co-conspirators were implicated (however, he said he was not aware).

The facts were getting worse for Mr. Sajid.

As a result of the misrepresentations and omissions, the Minister of Citizenship and Immigration applied to vacate Mr. Sajid’s refugee protection status and the RPD vacated Mr. Sajid’s refugee protection status. Mr. Sajid filed the judicial review of the decision of the RPD to vacate his refugee protection.  The Federal Court of Canada dismissed the application for judicial review.

The issues before the Federal Court were:

  1. Did the RPD err in finding that the Applicant obtained refugee protection by misrepresenting or withholding material facts?
  2. Did the RPD err in finding that there are serious reasons for considering that the Applicant committed the offence stated in the Indictment?
  3. Did the RPD err by failing to conduct an analysis under subsection 109(2) of the Immigration and Refugee Protection Act?

The Federal Court answered these questions as follows:

  1. The RFD did not err.  The role of a review court is not to reweigh the evidence considered by the tribunal.
  2. The RFD reasonably held that there are serious reasons for considering Mr. Sajid committed non-political crimes in the United States prior to his admission to Canada as a refugee.
  3. The RFD’s equivalency findings (that the U.S. offences had Canadian equivalent offences with the same essential element) were reasonable.
  4. Mr. Sajid had illegally shipped to Pakistan (or conspired with others) large quantities of high caliber firearms, firearm parts and accessories – these are serious non-political crimes
  5. The RFD did not apply the 10-year rule in mechanic or unjust manner.

However, what is lacking in the Federal Court decision is any review of the Canadian jurisprudence under the Export and Import Permits Act.  This is because there is little jurisprudence.  I do not know of any cases where an individual was sentenced to 10 years imprisonment for exporting a firearm.  There are few cases relating to prosecution for export offenses.  I cannot say with any degree of certainty that Mr. Sajid would have been convicted in Canada for conspiracy to export firearms to Pakistan.  Would the prosecutor have accept a plea bargain for testimony against the co-conspirators?

This case is is important because Canada is taking a hard stance against violators of export controls laws – even persons who have allegedly breached export controls laws of another country. There are a few recent immigration cases.  I expect there will be more cases in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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