Ottawa, Ontario, the 20th day of March 2006
Present: The Honourable Mr. Justice Beaudry
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the panel) dated July 13, 2005. The panel determined that the applicant was not a Convention refugee or a person in need of protection within the meanings of subparagraphs 1F(a) and 1F(c) of Article 1 of the Convention.
ISSUE
[2] Did the panel make an error warranting intervention by this Court?
[3] For the reasons that follow, the answer to this question is in the negative, and this application for judicial review will be dismissed.
FACTUAL BACKGROUND
[4] The applicant is a citizen of India. He was born on October 26, 1957, in Chhat Bir, in the state of Punjab.
[5] The applicant was a farmer before joining the Indian armed forces from 1976 to 1991. In 1992, he resigned from the army to work for the police force in the city of Chandigarh until 2004. From 2001 to 2004, the applicant was a member of the “CIA-START” anti-terrorist unit.
[6] In July 2001, a suspect who was a member of the “International Sikh Youth Federation” died while being detained and tortured by the applicant’s colleagues.
[7] Following this event, the applicant and some of his colleagues started receiving death threats. The applicant received the first threatening letter in February 2002.
[8] In November 2003, unknown persons went to the applicant’s residence while he was away and told his children that they would kill their father. The applicant then sent his children and wife to live at his in-laws and avoided staying in his house as much as possible.
[9] In January 2004, he received a second threatening letter by mail. He then decided to resign and leave India, believing that he could not be safe anywhere in that country.
[10] The applicant travelled with a false passport, which he destroyed on the aircraft, and arrived in Canada on August 5, 2004. He immediately claimed refugee protection.
IMPUGNED DECISION
[11] In its reasons, the panel relied on Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.), determining that it was not necessary to rule on the merits of the applicant’s claim for refugee protection before deciding if there was a possible exclusion under Article 1 of the Convention.
[12] After noting that the respondent had the burden of proving there were serious reasons for considering that the applicant had committed a crime against humanity, the panel examined the question of a possibility of exclusion by reason of the applicant’s participation in crimes against humanity.
[13] To define the legal framework of its analysis, the panel cited the following decisions: Ramirez v. Canada (Minister of Citizenship and Immigration), [1992] 2 F.C. 306 (C.A.), Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.) and Bazargan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1209 (C.A.) (QL).
[14] The panel’s final determination relied on Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.) and Gutierrez v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1494 (T.D.) (QL), in which it was held that a refugee protection claimant is excluded for complicity under Article 1 of the Convention if he was part of a group which committed a crime against humanity, had knowledge of the group’s activities, and did not disengage himself from the group when he had a chance to do so.
[15] The panel then analyzed the documentary and testimonial evidence before concluding that the applicant had been complicit in crimes against humanity. This determination was based on the reports mentioning the brutality demonstrated by the police forces in India and their use of torture. The applicant’s testimony was also to the effect that he had voluntarily joined the police force for economic reasons, had brought arrested persons to the police station knowing that they would be tortured, and was able to describe in detail the methods of torture used. Although he never directly tortured inmates, the applicant was well aware of the brutal practices the police used against arrested citizens. He could have left his job but he said that there was no other work and that he could not earn the same income from his farm as he could in the police.
[16] The panel came to the conclusion that the applicant was excluded under subparagraphs 1F(a) and 1F(c) because of his complicity in the crimes committed by the Indian police forces.
ANALYSIS
[17] Section 98 of the Act reads as follows:
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98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. |
98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. |
[18] Subparagraphs (a), (b) and (c) of section F of Article 1 of the Convention read as follows:
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F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations. |
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
a) Qu’elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l’humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes;
b) Qu’elles ont commis un crime grave de droit commun en dehors du pays d’accueil avant d’y être admises comme réfugiés;
c) Qu’elles se sont rendues coupables d’agissements contraires aux buts et aux principes des Nations Unies. |
[19] The standard of review applicable to questions of law is that of correctness (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[20] The conclusions reached by the panel on pure questions of fact are part of its expertise and specialized role, and this Court should only intervene if there was a patently unreasonable error (Shrestha v. Canada (Minister of Citizenship and Immigration), 2002 FCT 887, [2002] F.C.J. No. 1154 (T.D.) (QL), Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. no. 108 (C.A.) (QL)).
[21] Finally, the panel’s conclusion concerning the applicant’s participation in torture committed by Indian police forces and his exclusion under Article 1 of the Convention is a question of mixed law and fact. The applicable standard of review is reasonableness simpliciter (Harb, supra, Salgado v. Canada (Minister of Citizenship and Immigration), 2006 F.C. 1, [2006] F.C.J. No. 11 (T.D.) (QL)).
[22] In any event, even if I did apply the most stringent standard to all the conclusions reached by the panel in this case, I am of the opinion that the intervention of this Court would not be warranted against any of them.
[23] The applicant alleged that the panel rendered its decision on the basis of the documentary evidence in exhibits M-2, M-3 and M-6 to determine that the Indian police committed crimes against humanity, while other documents showed that these activities had ceased during the relevant years.
[24] The panel began by noting the legal principles connected with its analysis of the applicable law regarding exclusion for complicity in crimes against humanity. A reading of the reasons given by the panel clearly shows that it conducted a thorough analysis of the applicant’s participation in the activities of the Indian police, in compliance with the principles mentioned by Mr. Justice Andrew McKay in Gutierrez, above:
Essentially then, three prerequisites must be established in order to provide complicity in the commission of an international offence: (1) membership in an organization which committed international offences as a continuous and regular part of its operation, (2) personal and knowing participation, and (3) failure to disassociate from the organization at the earliest safe opportunity.
[25] The documentary and testimonial evidence which was before the panel showed that the Indian police forces used torture against detained citizens, that the applicant was aware of this, as he had seen it himself, and that he only disassociated himself when he came to fear reprisals from the International Sikh Youth Federation, and not because he objected to police practices.
[26] The Court is of the opinion that the documentary evidence supports the panel’s conclusions. The panel may choose the documents it considers most important. The decisions of the Immigration and Refugee Board cited by counsel for the applicant to refute the panel’s conclusions concerning the brutal activities of the Indian police force are less relevant, considering the applicant’s own testimony.
[27] Accordingly, I cannot see any error in the panel’s reasons and conclusions warranting the intervention of this Court.
[28] The parties decided not to submit any questions to be certified, and the file does not contain any.
ORDER
THE COURT ORDERS that this application for judicial review be dismissed. No question is certified.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5312-05
STYLE OF CAUSE: SAMSHER SINGH GHOTARA
v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 14, 2006
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
APPEARANCES:
Olivier Chi Nouako FOR THE APPLICANT
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Olivier Chi Nouako FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec