Date: 20050916
Docket: IMM-134-05
Citation: 2005 FC 1256
BETWEEN:
MOHAMED ZIAR JAOUADI
Applicant
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated December 15, 2004, determining that the applicant is excluded from the scope of the Convention under paragraphs 1F(b) and 1F(c) of the Convention.
[2] Mohamed Ziar Jaouadi (the applicant) is a citizen of Tunisia. He claimed refugee status in August 2000 for political and religious reasons based on incidents which had occurred in Tunisia.
[3] The Federal Court of Appeal, in Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306, and Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433, properly stated the principle to the effect that the words "serious reasons for considering" in clause 1F of the Convention establish a standard of evidence requiring something more than mere suspicion or conjecture, but less than proof on a balance of probabilities. It appears from the panel's reasons that this was the standard of proof that it used in regard to the applicant.
[4] The general principle in matters of exclusion is that mere membership in an organization implicated in the commission of international crimes is not sufficient to establish a basis for exclusion. There is however an exception to the general rule when the very existence of the organization in question is principally directed to a limited, brutal purpose. There is then an irrebuttable presumption of complicity (see Sungu v. Minister of Citizenship and Immigration, 2002 FCT 1207, and Saridag v. Canada (M.E.I.) (1994), 85 F.T.R. 307). In this case, the panel referred to many examples from the documentary evidence indicating that the Ennahda is a group which is principally directed to a limited, brutal purpose.
[5] Further, a "personal and knowing participation" may be direct or indirect and does not require formal membership in the group that is engaged in the condemned activities (Sungu, supra, and Bazargan v. Canada (M.C.I.) (1996), 205 N.R. 282 (F.C.A.)). The fact that the applicant testified that he was not a member is not conclusive in this case. There is ample evidence, primarily his testimony of November 9, 2001, indicating that he knew the group well and had connections with the group that even found him work in Canada and gave him money. On that point, the inferences drawn by the IRB do not appear unreasonable to me.
[6] With respect to the applicant's testimony after the Minister's intervention and after the appearance of new counsel, the panel could reasonably disregard it and prefer his first testimony (see Lubana v. Minister of Citizenship and Immigration, 2003 FCT 116).
[7] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
September 16, 2005
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-134-05
STYLE OF CAUSE: MOHAMED ZIAR JAOUADI v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 15, 2005
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: September 16, 2005
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon & Morin FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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