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IMMIGRATION AND REFUGEE BOARD

- IMMIGRATION DIVISION -

Record of a Detention Review held under the

Immigration and Refugee Protection Act, concerning

JAHANZEB MALIK
HEARING: PUBLIC

HELD AT:

Immigration Division Office, Toronto

DATE:

March 11, 2015

BEFORE:

Marilou Funston

- Member

Jahanzeb Malik
Omer Chaudhry
Jessica Lourenco
Naureen Ismail
N/A

- Person Concerned
- Counsel
- Minister's Counsel
- Minister's Co-Counsel
- Interpreter

APPEARANCES:

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MEMBER:
Is that you, sir?

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Good morning. This is a review of the reasons for detention of Jahanzeb Malik.

PERSON CONCERNED:

Yes.

MEMBER:
Thank you. Today is the 11th of March, 2015. This hearing is being held by way
of video conference with the Central East Correctional Centre in Lindsey, Ontario, and the Immigration
Division offices in Toronto.
My name is Marilou Funston. I'm a member of the Immigration Division. Minister's counsels
today are Ms Lourenco and Ms Ismail. Also present today is counsel for Mr. Malik. I'll ask you please to
state your name for the record.
COUNSEL:

It's Chaudhry, Omer.

MEMBER:

Thank you. And you're a barrister and solicitor?

COUNSEL:

I am indeed.

MEMBER:
Thank you. All right. Mr. Malik, I have a notice in front of me from the Canada
Border Services Agency requesting this detention review, and they'd indicated in the notice that you've
been arrested by them for the purpose of an admissibility hearing. The notice also indicates that they
have detained you on two grounds, those being that you are a danger to the public and that you would not
otherwise appear for your Immigration matters.
The purpose of this review is for me to determine whether or not you can be released from the
custody of the Canada Border Services Agency. If I make a release order, then I can require that you
abide by certain conditions. I can also require that someone put up money as a financial guarantee that
you do abide by any conditions we may impose. Do you understand that?
PERSON CONCERNED:

Yes, madam, I do.

MEMBER:
All right, thank you. All right, so the way this will proceed is I'll hear the
Minister's submission first, and when she's finished, I'll hear what your counsel has to be say, and then I'll
made my decision. Go ahead, Ms Lourenco.
PERSON CONCERNED:

Sure.

MINISTER'S COUNSEL:
Thank you. Mr. Malik is not a Canadian citizen. He is a
permanent resident of Canada, and a citizen of Pakistan. On the 13th of April, 2004, a student visa was
issued to him in Islamabad, valid until the 21st of November 2007. Mr. Malik had obtained this visa for
the purpose of coming to study in Canada at York University.
He arrived in Canada on the 27th of April 2004 at Pearson International Airport. A student
authorization was issued to him until the 30th of June 2008. He subsequently left Canada at some point

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and travelled back on three other occasions ... the 30th of ... of August, excuse me, 2004, the 16th of
January 2005 and the 20th of February 2005.
On the 26th of August 2005, Mr. Malik was charged by Toronto Police Service with the offences
of fraud under 5,000, possess or use credit card data, two counts, and fraudulently use credit card data,
three counts. These charges related to Mr. Malik possessing and using fraudulent credit cards to obtain
goods.
On the 26th of January 2006, Mr. Malik received a conditional discharge for those offences. As a
result, the court imposed a 12 month probation order.
On the 26th of March 2008, an application for landing was received. Mr. Malik was being
sponsored by his spouse. On the 28th of August 2008, a visitor record was issued to him, valid until the
5th of March 2009. As well...
MEMBER:

I'm sorry, valid till when?

MINISTER'S COUNSEL:
MEMBER:

The 5th of March 2009.

Thank you.

MINISTER'S COUNSEL:
As well, on the 23rd of February 2000 and ... or sorry, on the
19th of December 2008, employment authorization was also issued to him with the same expiry, the 5th
of March 2009.
Mr. Malik was ultimately granted permanent resident status on the 23rd of February 2009. The
details of him leaving Canada subsequent to that are unclear at this point, but he arrived back at Pearson
International Airport on the 6th of September 2009.
On the 22nd of April 2012, Mr. Malik was charged by Peel Regional Police with the following
offences; two counts of assault, a count of uttering threats. These charges related to an assault on his
wife, with whom he was already separated. On the 24th of April 2012, he was released from custody on
conditions, requiring, amongst other things, that he not be within 500 metres of the victim's residence.
On the 12th of June 2012, he was charged by Peel Police with failing to comply with those
conditions as Mr. Malik was found to be driving within 200 metres of his wife's residence, therefore
breaching the condition. He did at that time admit to police officers that he was in the area.
PERSON CONCERNED:
MEMBER:

No, you'll remain quiet until the Minister is finished, and then your counsel...

PERSON CONCERNED:
MEMBER:

Objection, can I...

I'm sorry...

...will have an....

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PERSON CONCERNED:
MEMBER:

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I'm sorry to interrupt you guys.

That's fine. Go ahead, Ms Lourenco.

MINISTER'S COUNSEL:
Subsequent to ... thank you. Subsequent to that, Mr. Malik does
leave the country. Details of that travel to be confirmed, but he did arrive again on the 3rd of April 2013
at Pearson International Airport. At that time, he was interviewed by a Canada Border Services officer
and indicated to that officer that he was returning from a trip ... from ... to Libya. He indicated to the
officer that he was teaching in Libya.
It is the Minister's understanding that CSIS also spoke to Mr. Malik on that day.
On the 9th of April 2013, Mr. Malik received a conditional discharge for the offence of assault
and uttering threats. The fail to comply charge was withdrawn. As a result of the conditional discharge,
there was a five year weapons prohibition imposed on him as well as 18 months of probation.
In September of 2014, Mr. Malik became the subject of an investigation by the integrated national
security enforcement team. This investigation continued until the 3rd of March 2015 at which time an
evidence package was provided to the Canada Border Services Agency. According to the evidence that
has been provided, Mr. Malik was contacted by an undercover officer to install hardwood floors in his
home, and at this time...
MEMBER:

Just one second.

MINISTER'S COUNSEL:
MEMBER:

Oh, certainly.

Go ahead.

MINISTER'S COUNSEL:
At this time, Mr. Malik began a friendship with this undercover
officer. The officer told Mr. Malik that he was Bosnian and that he had participated in combat during the
Bosnian war. Mr. Malik began to trust this undercover officer and began discussing religion with him. In
the following months, Mr. Malik advised the officer that he did support the Islamic state as well as Al
Qaida.
MEMBER:

By Islamic state, you mean ISIL?

MINISTER'S COUNSEL:
MEMBER:

I'm sorry, ISIL and who?

MINISTER'S COUNSEL:
MEMBER:

ISIL, also known as ISIS, depending on which region.

ISIS.

No, the other one.

MINISTER'S COUNSEL:

The Islamic state?

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MEMBER:

No, the other one.

MINISTER'S COUNSEL:

ISIL?

MEMBER:

No, the other one.

COUNSEL:

Al Qaida.

MINISTER'S COUNSEL:
MEMBER:

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Al Qaida.

Thank you.

MINISTER'S COUNSEL:
Further, Mr. Malik advised the undercover officer that he had
attended training camps in Libya, which had involved combat, weapons and land mine training.
MEMBER:

I'm sorry, involved what?

MINISTER'S COUNSEL:
MEMBER:

Combat training, weapons training and land mine.

Go ahead.

MINISTER'S COUNSEL:
Mr. Malik indicated his belief that the violent jihad was being
waged against Western enemies was righteous, and that he believed that the mujahideen or fighters died
as martyrs. He further directed the undercover officer to strengthen his Islamic beliefs by watching
lectures by Al-Awlaki. This individual is a deceased member of Al Qaida. Did you want me to spell the
name for the record, Madam Member?
MEMBER:

Yes, please.

MINISTER'S COUNSEL:
MEMBER:

Mm-hmm.

MINISTER'S COUNSEL:
MEMBER:

A member of Al Qaida whose lectures are known to be accessed

You said these were video lectures?

MINISTER'S COUNSEL:
MEMBER:

...hyphen A-W-L-A-K-I, a member of...

A-W-L-A-K-I.

MINISTER'S COUNSEL:
by radicalized individuals.
MEMBER:

A-L...

That's correct.

Thank you. Go ahead.

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MINISTER'S COUNSEL:
Further, Mr. Malik claimed to have personal contact with
Al-Awlaki. Mr. Malik showed the undercover officer numerous violent videos of the Islamic state
executing captives, including beheadings. He indicated his support of the attackers in Paris.
MEMBER:

You're talking about the Charlie Hebdo or something else?

MINISTER'S COUNSEL:
MEMBER:

Yes.

Okay.

MINISTER'S COUNSEL:
Mr. Malik then began to recruit the undercover officer to assist
him in making an explosive device that could be detonated remotely. The plans indicated ... detailed
which targets they may take out, including the American consulate in Toronto and other buildings in the
financial district in Toronto. The planning was elaborate, including Mr. Malik discussing ... discussing
with the undercover officer the ... the video message that they would leave behind in order that it may
inspire others.
As a result of this evidence that was received by the Agency on the 6th of March 2015, a
44 report was written pursuant to Sections 34(1)(c) and 34(1)(d), and a warrant for Mr. Malik's arrest was
issued. The warrant was executed on the 9th of March, at which time Mr. Malik was taken into custody.
He was notified of the allegation against him, and was served with notification in order to make
humanitarian and compassionate submissions that could be considered, the deadline for those submissions
being the 24th of March 2015.
According to the notice of arrest, Mr. Malik indicated at the time that he was taken into custody
that he did not have any fear of returning to Pakistan. The Minister is in possession of Mr. Malik's
passports, both expired and valid.
It is the Minister's position in view of the circumstances that Mr. Malik is both unlike to appear
and a danger to the public. As well, the Minister will be arguing that 58(1)(c) applies in this case. I'll
begin my submissions with that ground.
The Minister is in this case taking necessary steps...
MEMBER:
Just ... okay, just one second. Mr. Malik, just for the record, the Minister has
indicated that they're going to be arguing a third ground for your detention, which is 58(1)(c), and that
ground states that the Minister is taking necessary steps to inquire into a reasonable suspicion that a
person is inadmissible on grounds of security, violating human or international rights, serious criminality,
criminality or organized criminality. Okay, so they're actually going to be arguing...
PERSON CONCERNED:
MEMBER:

Can you repeat?

They're actually going to arguing three grounds, okay?

PERSON CONCERNED:

Can you repeat that again?

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MEMBER:
Okay. As I stated to you at the outset, the Minister is arguing that you are a flight
risk and a danger to the public. They're now indicating they're...
PERSON CONCERNED:

All right.

MEMBER:
...arguing a third ground, which is the one that I just read out to you, and again I'll
say it ... the Minister is taking necessary steps to inquire into a reasonable suspicion that you are
inadmissible on grounds of security, violating human or international rights, serious criminality,
criminality or organized criminality. That's the ground 58(1)(c), okay. All right, go ahead.
PERSON CONCERNED:

All right, so that's a third charge?

MEMBER:
That's the third ground for detention that they're going to be arguing, and this is
the one you're starting off with.
MINISTER'S COUNSEL:

Yes.

MEMBER:
Okay. So she's going to give her reasons now why she's arguing this ground, so
pay attention. Go ahead, Ms Lourenco.
MINISTER'S COUNSEL:
Thank you. The Minister in this case is taking the necessary
steps to inquire into what the Minister believes is a very reasonable suspicion that in fact Mr. Malik is
inadmissible on the grounds of security. The Minister has just recently obtained the full first set of
evidence from the investigation commenced by (inaudible). This evidence continues to be reviewed by
the Agency. As well, there is further documentation that will be provided on this case, which will have to
be reviewed by officers.
The Minister would submit, keeping in mind the time frames for what is a very large evidence
package being the 3rd of March to today being the 11th, it is the Minister's submission that we certainly
are working within what would be a reasonable amount of time to review notes from a very lengthy
investigation, and as I stated, all of the evidence has yet to be received.
Further, the passport of Mr. Malik and his statements about travel need to be further verified by
the Minister. This will of course play a role in inadmissibility for security. It could, as well as further
evidence, lead to additional reports being written, all under Section 34, of course. It is the Minister's view
that in the circumstances, it is certainly steps that are reasonable and that the suspicion in this case, given
the preliminary evidence, is certainly beyond the test of reasonable.
It's also the Minister's submission that Mr. Malik has been given notification of his opportunity to
make submissions. Those submissions could be humanitarian submissions about why he would like to
stay in Canada, but they could also be submissions on his views of the allegation, which could lead to
further evidence and/or investigations.
Once this information is finally reviewed and a final decision is made as to whether any further
reports could be written, the Minister will advise the tribunal accordingly, and of course, in the future, this
ground may not be argued for Mr. Malik's detention. At this point, the Minister submits that Madam

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Member's role as supervisory, in terms of this ground, and that the test is whether the Minister is taking
necessary steps, and whether the suspicion is reasonable.
As far as being unlikely to appear to this admissibility hearing, it is the Minister's position that
Mr. Malik is an individual who has ties to Canada. It is the Agency's information that he has two children
here. He does have a wife from who he is separated. It is likely that he would not like to be permanently
separated from those children.
He has in his communications with the undercover officer expressed anti-government views. In
the Minister's view, it's not likely that he would be motivated to comply with the requirements imposed on
him by any branch or division of the Canadian government, including this tribunal.
His conduct in Canada in regards to his contact with the criminal justice system and police
agencies further demonstrates a disregard for the general laws of this country. He has two conditional
discharges . Those are findings of guilt by the court. They certainly do not raise any confidence that he
would comply with conditions imposed on him.
It's also noteworthy that according to the information available to the Minister, he did violate the
condition imposed on him in ... in regards to the assault charge. The finding of guilt related to the fraud ...
this relates to a breach of trust offence and further impugns his credibility, demonstrates as well in the
Minister's view access to and willingness to use fraudulent documentation when necessary for his own
gain.
In the Minister's view, looking at Mr. Malik's history, there's nothing to give any confidence that
he would appear for a proceeding which could have the effect of permanently barring him from Canada
and separating him from his children.
In regards to being a danger to the public, the Minister submits that the findings of guilt in
regards to assault and uttering threats, although the court found it fit in that case to issue a conditional
discharge, are still something that can be considered by the tribunal, and still relates to an incident of
violence and threats of further violence.
Further, the Minister feels that Regulation 246 is not exhaustive. This is something that has been
agreed upon by the court, most recently in Bruzzese v. Canada, 2014 at paragraph 68. The list of
considerations for danger to the public, although guiding ... are not exhaustive, and there are other factors
that the member can take into consideration.
The circumstances of Mr. Malik's case clearly make him a present and future danger to the
Canadian public. This come to light from a substantial investigation that Mr. Malik has been involved in
recruiting an individual whom he was attempting to radicalize and enlist to construct an ... an explosive
device, the purpose of that being to carry out what the Minister submits is a terrorist attack in Canada.
In the Minister's view, this cannot be ignored. Had the individual that Mr. Malik made contact
with not been an undercover officer but instead an individual of a similar mindset, the Minister submits
that it is likely that Mr. Malik had the opportunity to carry out this plan, mass destruction and possibly the
loss of life would have been the result.

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Aside from the very serious physical plans that Mr. Malik put into motion, his attempt to
indoctrinate another into radicalized beliefs also raises a danger to the public concern. The Minister
submits that spreading these beliefs, including the justification for violence, is extremely dangerous to
Canadian society, and Mr. Malik's willingness and history of doing so make him both a current and future
danger.
There have been numerous examples of how just ... of how doing this and spreading these beliefs
has had dire consequences, including the loss of human life in numerous terrorist attacks carried out by
individuals who were motivated by groups spreading their beliefs online.
It is clear in the Minister's view that Mr. Malik's circumstances put him within Regulation 246 as
being a danger to the public.
As far as other factors to consider for detention, future length, in the Minster's view, there's no
reason at this point to believe that future length would be a concern in this case. Mr. Malik does have an
opportunity to make submissions, but the period granted to him is certainly not unduly lengthy.
Following the receipt of these submissions and the final decision on referral, the Minister will be
preparing the disclosure package for the admissibility hearing as soon as possible. This case would be
given priority processing given that Mr. Malik is in detention, should his detention continue, and of
course would be given priority processing by the Division as well in those circumstances.
Again, we do have a valid passport on file. That is very future looking, but it is something that is
worth noting. It's not an issue that would have to be overcome in Mr. Malik's case.
In view of these circumstances, the Minister is seeking continued detention. Thank you.
MEMBER:

Thank you. Mr. Chaudhry.

COUNSEL:

We won't be making any submissions today.

MEMBER:
All right. Thank you. All right, I'm going to take a brief recess and I'll come
back with my decision, so we can use this as the morning break. We'll take 15 minutes.
---- HEARING RECESSED ------ HEARING RESUMED ---MEMBER:
Okay, we're back on the record. All the same parties are present. Mr. Malik, I'm
ready to give you my decision.

--- DECISION ---

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MEMBER:
The ... the Minister is today seeking your continued detention on three grounds.
They are arguing that you are a danger to the public, a flight risk and a security risk. Today, you have
chosen not to address the Minister's submissions.
Your history is that you first came to Canada as a student in 2004. You eventually married and
were sponsored for permanent residence as the spouse of a Canadian citizen or permanent resident, and
permanent residence was granted to you on that basis on the 23rd of February 2009.
You continue to be at this time a permanent resident of Canada. You have a criminal record in
Canada that involves conditional discharges for fraud under, possession and use of credit card data and
fraudulent use of credit card data. You have another conditional discharge for assault and uttering threats,
and finally you have a withdrawn charge for fail to comply with bail conditions.
You were arrested on warrant by the Canada Border Services Agency on the 6th of March 2015,
as you had been reported as inadmissible to Canada pursuant to ... I'm sorry, 6th of March ... sorry, the 9th
of March 2015, you were arrested by Canada Border Services Agency as you had been reported on the 6th
of March 2015 as inadmissible to Canada pursuant to paragraphs 34(1)(c) and 34(1)(d).
I've considered the submissions of the Minister and I am satisfied that the Minister has
established on a balance of probabilities that you are a flight risk, a danger to the public and that you
should be detained for security reasons while the Minister continues to investigate their concerns that you
are a security risk.
With ... with respect to the issue of danger to the public, your criminal record involves
convictions, albeit you received conditional discharges, for what are offences that involve violence and
threats of violence, and those types of offences are ones that I am required to consider under Regulation
246, and so I am satisfied that in that regard, the regulations apply against your release.
I also accept the Minister's argument that the circumstances leading up to your arrest as a security
risk give rise to significant danger to the public concerns. Their information is that you were planning an
attack with the potential to cause significant injury and death, and that plan included inspiring others to
follow your example, which could potentially have led to yet more injury and death. I'm satisfied that the
Minister has shown on a balance of probabilities that you pose a present and future danger to others.
With respect to the issue of flight risk, the Minister has argued that you have strong ties to
Canada, as you have two children here, and that therefore you would not be willing to be forcibly
separated from them on what would likely amount to a more or less permanent basis. They've also argued
that you've shown a ... a disregard for the law, and that's evidenced by your criminal record, and they also
made a point of the fact that you were at one point charged with a fail to comply offence.
Now this one was withdrawn. You did not receive a conviction. However, the information is that
you did not dispute the fact that you had committed the violation. So I'm satisfied that based on that
admission that you do in fact have a history of not complying with conditions imposed on you, even
though it did not ultimately lead to a conviction.

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I'm also persuaded that the Minister has made a valid argument that you ... that your alleged antigovernment views raise serious doubts that you would feel obliged to abide by any conditions that I might
impose, and that includes appearing as required for an admissibility hearing and for removal if it should
come to that.
With respect to the ground that you are a security risk, the provision requires that I be satisfied
that the Minister is making reasonable steps to inquire into a suspicion that you are potentially
inadmissible for security reasons. It's not for me to dictate to the Minister what steps they should be
taking and what investigations they should be undertaking. I ... my role in this is to determine whether or
not what the Minister is doing is reasonable, and that by continuing their investigation, there is the
potential that they will uncover relevant evidence that has some bearing on the allegations of admissibility
that's being made against you. And in this regard, I'm satisfied that the Minister is doing just that.
The Minister recently came into information about you that was gathered by another investigatory
body, and the Minister submitted that the results of that investigation include not only concerns that you
are ... that you have alleged ties to a terrorist group, but that you have allegedly planned your own
terrorist attack on facilities here in Toronto.
They are still reviewing the evidence that they've already received. They are expecting additional
evidence which they will also need to review. They also expect to undertake further investigation. The
example the Minister gave is with respect, for example, to your travel outside Canada over the last few
years.
It is my view that in view of the foregoing and ... and certainly the seriousness of the issues that
are involved in this case, that I am concluding that I'm satisfied the Minister's taking the necessary steps
to inquire into a reasonable suspicion that you are inadmissible on grounds of security.
Release on your own promise to appear is not appropriate in these circumstances and today I've
not been presented with any alternatives to consider. With respect to the potential length of future
detention at this time, you are being given the opportunity to address the inadmissibility reports that have
been made against you, and to put forward any humanitarian and compassionate considerations, and the
deadline for that is very soon. It's the 24th of ... of March.
If the Minister proceeds with the referral for an admissibility hearing, then you will be given
priority as a person in custody and therefore my expectation is that the admissibility hearing would be
arranged in the very near future.
So at this time, I don't see anything that would indicate to me that your future detention is likely
to be lengthy.
You will have another review of the reasons for your detention a week from today. I will provide
you and your counsel with a notice for the 18th of March at nine o'clock in the morning.
This hearing is concluded.

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----------REVIEW ADJOURNED---------I HEREBY DECLARE THAT THIS IS A TRUE

TRANSCRIPT OF THE RECORDING AND THAT I HAVE
SWORN THE OATH OF SECRECY

________________________________
Memona Arshed, Transcriptionist
For DigitScribe Inc.
Security# 95624084
March 12, 2015