Date: 20100122
Docket: IMM-2777-09
Citation: 2010 FC 71
Ottawa, Ontario, January 22, 2010
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
KHOKON ISLAM
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Khokon Islam seeks judicial review of a decision
of a member of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the tribunal). This application is submitted under subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act). The tribunal concluded that pursuant to section 98 of the Act the
applicant was neither a refugee nor a person in need of protection because
there were serious reasons to believe that he had been guilty of acts contrary
to the purposes and principles of the United Nations.
* * * * * * * *
[2]
The applicant, a citizen of Bangladesh, was born in the District of Noakhali.
[3]
Before leaving for Canada, he was a businessman and was actively involved in politics. In May 1996,
he became a member of a political party, the Awami League (“AL”). He
participated in the 1996 electoral campaign, which was won by the AL, as well as in the 2001 elections, which
it lost.
[4]
According to the documentary evidence analyzed
by the tribunal, the AL, like
the other political parties in Bangladesh, often uses violence in its political activities. The tribunal
noted that when the party was in power, its members violently disrupted strikes
initiated by the opposition and, in at least one case, even participated in the
murder of an opposition activist. In general, violence, including murder, is very
often associated with political activity in Bangladesh, whether at meetings, demonstrations or during strikes. Violence is
also prevalent in the youth wings of political parties, including that of the AL, which were responsible for a good
number of attacks against journalists. The government formed by the AL, including the Prime Minister,
encouraged this violence. Elections are also regularly characterized by abuse,
intimidation and violence.
[5]
In addition to directly participating in
political violence, parties, including the AL, use the police for this purpose when they form the government. The
documentary evidence shows that political persons in charge order the police to
attack and even murder members of the opposition, and the police regularly engage
in torture. It is established that this was the case when the AL formed the government from 1996 to 2001.
[6]
In his Personal Information Form (“PIF”), the
applicant declared having been very active in the AL. Letters from other party
officials confirmed this. In January 1998, the applicant became a member of the
executive council of the local chapter of the AL. In January 2001 he became Secretary for Youth and Sports. In this
capacity he was in charge of relations between the local chapter of the party
and its youth wing. In January 2004 he became a Public Relations Secretary for
the local chapter of the party. He directed protest demonstrations against the
government in power since 2001 and made vehement anti-government speeches at
public meetings.
[7]
Fearing the police and government, he left
Bangladesh in 2005 and made a claim for refugee protection in Canada.
[8]
On June 23, 2006, the Refugee Protection
Division (RPD) sent a letter to the Canada Border Services Agency (“CBSA”)
notifying it that the issue of exclusion under section 98 of the Act could
arise in the applicant’s case, as there were serious reasons to believe that he
was guilty of crimes against humanity or of acts contrary to the purposes and
principles of the United Nations. The letter referred to the decision of this
Court in Chowdhury v. Minister of Citizenship and Immigration, 2006 FC
139 [Chowdhury 2006], in which Justice Simon Noël had upheld a decision
of the RPD concluding that section 98 of the Act applied to the applicant,
a local leader of the AL. A copy of this letter was sent to Robert Proulx, the
immigration consultant acting for the applicant.
[9]
The CBSA convened the applicant to an interview,
which was held on July 20, 2006, to collect additional information about
his application.
[10]
On July 24, 2006, the Minister of Public
Safety and Emergency Preparedness filed a notice of intervention, advising the
RPD and the applicant (through his immigration consultant) of his intention to
submit that the applicant was possibly an accomplice to war crimes, crimes against
humanity or acts contrary to the purposes and principles of the United Nations.
* * * * * * * *
[11]
The Minister of Public Safety and Emergency
Preparedness intervened before the tribunal, submitting that section 98 of the
Act applied to the applicant as there were serious reasons to believe that he
had committed crimes against humanity or that he had acted contrary to the purposes
and principles of the United Nations. The tribunal did not analyze the issue of
crimes against humanity. The decision strictly concerns acts contrary to the purposes
and principles of the United Nations. The tribunal concluded that there were
serious reasons to believe that the applicant was guilty because of his
complicity with the AL. He was
accordingly excluded from the category of refugees and persons in need of
protection.
[12]
First, the tribunal concluded that the AL was guilty of acts which were contrary
to the purposes and principles of the United Nations. To do so, it first
analyzed the documentary evidence concerning the AL’s involvement in political violence. It then concluded that at
least some of the violence for which the AL was responsible before, during and
following its term in office, was contrary to the purposes and principles of
the United Nations, within the meaning given to this expression by the Supreme
Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193. The AL was responsible for torture and brutal
attacks against demonstrators, including murder, thereby infringing the Universal
Declaration of Human Rights or the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. In addition, the tribunal
held that calls to violence against journalists and to murder by the Prime
Minister and leader of the AL
were also actions contrary to the purposes and principles of the United Nations.
[13]
Referring to Pushpanathan, the tribunal
noted that “international jurisprudence” did not approve the recommendation at
paragraph 163 of the Handbook on Procedures and Criteria for
Determining Refugee Status (“Handbook”) to restrict the category of
persons guilty of acts contrary to the purposes and principles of the United
Nations to those who “. . . must have been in a position of power in a Member
State and instrumental to his State’s infringing these principles.”
[14]
Second, the tribunal concluded that because of
his association with the AL,
the applicant was an accomplice to the acts committed by it that were contrary
to the purposes and principles of the United Nations. The tribunal noted that
the AL was not “. . .
principally directed to a limited brutal purpose” in which mere membership may “by
necessity involve personal and knowing participation in persecutorial acts” (Ramirez
v. Canada (Minister
of Employment and Immigration), [1992] 2 F.C.
306, at page 317 (F.C.A.)). The tribunal therefore examined the case law
on complicity and applied the test developed by the Federal Court of Appeal in Sivakumar v. Canada (Minister
of Citizenship and Immigration), [1994] 1 F.C. 433,
and summarized by Justice Michel Shore in Ryivuze v. Minister of Citizenship and Immigration,
2007 FC 134, at paragraph 38, to determine whether or not the applicant in
addition to his membership in the AL, was truly an accomplice in the actions
committed by this party.
[15]
The factors developed by case law and applied by
the tribunal are the following: (1) the nature of the organization; (2) the method of recruitment; (3) position/rank in the
organization; (4) knowledge of the organization’s atrocities; (5) the
length of time in the organization and (6) the opportunity to leave the
organization.
[16]
The tribunal noted that the AL was not an organization devoted strictly
to violence.
[17]
However, it noted that the applicant had joined
the party willingly and that he had progressed from the rank of a mere member
to that of an “important leader”. The tribunal rejected the applicant’s
submission to the effect that his involvement was local and limited. It noted
that in his narrative of the events leading up to his flight, the applicant emphasized
the extent of his political involvement and the role he held, and that he had
begun to minimize it only when he was facing the possibility of being excluded
from the category of potential refugees because of this involvement. The tribunal
believed the applicant’s initial version and not his subsequent one. On the
other hand, the tribunal noted that it was often local and not national leaders
who were responsible for atrocities committed by the AL. According to the tribunal, “. . . [t]his is the
essence of complicity by association.”
[18]
Regarding the knowledge the applicant had of the
actions of the AL, the tribunal
ruled that the applicant’s statements that he had no knowledge of anything and
that in his district the AL had
never committed any infringements of human rights were found not to be credible.
The tribunal basically considered it implausible that the applicant had no
knowledge of the abuses committed by the AL, its members and directors was
implausible. According to the documentary evidence, information about these
abuses was published in a large number of newspapers. (The tribunal’s detailed
findings are at paragraphs 45 to 54 of its decision.) The tribunal noted among
other things that the applicant’s district of origin was next to the district
of Chittagong, where the AL’s
abuses were especially violent and systematic. The tribunal made a distinction
between the applicant’s file and the case at the basis of this Court’s decision
in Chowdhury v. Minister of Citizenship and Immigration, 2003 FC 744,
235 F.T.R. 271, in which Mr. Justice Edmond Blanchard had concluded at paragraph 39
that “Indeed the evidence supports that only a minority [of the members of AL]
are involved with violence and such acts.” In this case, according to the IRB “voluminous
documentary evidence from reliable sources was produced, showing that it is not
a minority of Awami League members that are involved in violence . . . ;
violence is a common feature in politics, among all parties.” The applicant
himself admitted that all parties “did practice violent actions.” The tribunal
considered this an admission by the applicant that “violence was occurring
within the Awami League members (sic) and could possibly occur in the
course of his own activism.”
[19]
On the other hand, the tribunal found that the
applicant spent a considerable amount of time on his activities in the AL, as he had devoted some 15 to 20 hours a
week for nine years.
[20]
Finally, the applicant never left the AL and
never dissociated himself from it, even though his departure for Canada ended his active involvement.
Although his position within the organization gave him opportunities to make
his opinions heard, he never opposed the abuses committed by the party. Far
from having tried to stop them, he actively supported the organization.
[21]
The tribunal underlined the role played by local
leaders of all political parties in the violence that characterizes political
life in Bangladesh. It
concluded that the applicant was one of those of whom the Supreme Court of
Canada said at paragraph 63 of Pushpanathan, above, that “[t]he rationale is that those who are responsible for the persecution
which creates refugees should not enjoy the benefits of a Convention designed
to protect those refugees”.
* * * * * * * *
[22]
The following provisions of the Act are relevant
in this case:
|
3. (3) This Act is to be construed and applied in a
manner that
…
(f)
complies with international human rights instruments to which Canada is signatory.
|
3. (3) L’interprétation et la mise en
œuvre de la présente loi doivent avoir pour effet :
…
f) de se
conformer aux instruments internationaux portant sur les droits de l’homme
dont le Canada est signataire.
|
|
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.
|
|
SCHEDULE
(Subsection 2(1))
SECTIONS E AND F OF ARTICLE 1 OF THE UNITED NATIONS
CONVENTION RELATING TO THE STATUS OF REFUGEES
…
F. The provisions of this Convention shall not
apply to any person with respect to whom there are serious reasons for
considering that:
…
(c) he has been guilty of acts contrary to the purposes
and principles of the United Nations.
|
ANNEXE
(paragraphe 2(1))
SECTIONS E ET F DE L’ARTICLE PREMIER DE LA CONVENTION DES
NATIONS UNIES RELATIVE AU STATUT DES RÉFUGIÉS
…
F. Les dispositions de cette Convention ne
seront pas applicables aux personnes dont on aura des raisons sérieuses de
penser :
…
c) Qu’elles se
sont rendues coupables d’agissements contraires aux buts et aux principes des
Nations Unies.
|
[23]
In addition, the applicant invoked the following
provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227:
|
14. For the purpose of determining whether a
foreign national or permanent resident is inadmissible under paragraph 34(1)(c)
of the Act, if either the following determination or decision has been
rendered, the findings of fact set out in that determination or decision
shall be considered as conclusive findings of fact:
(a) a determination by the Board, based on
findings that the foreign national or permanent resident has engaged in
terrorism, that the foreign national or permanent resident is a person
referred to in section F of Article 1 of the Refugee Convention; or
…
|
14. Les décisions ci-après ont, quant aux faits,
force de chose jugée pour le constat de l’interdiction de territoire d’un
étranger ou d’un résident permanent au titre de l’alinéa 34(1)c) de la
Loi :
a) toute
décision de la Commission, fondée sur les conclusions que l’intéressé a
participé à des actes terroristes, qu’il est visé par la section F de
l’article premier de la Convention sur les réfugiés;
…
|
|
15. For the purpose of determining whether a
foreign national or permanent resident is inadmissible under paragraph 35(1)(a)
of the Act, if any of the following decisions or the following determination
has been rendered, the findings of fact set out in that decision or
determination shall be considered as conclusive findings of fact:
…
(b) a determination by the Board, based on
findings that the foreign national or permanent resident has committed a war
crime or a crime against humanity, that the foreign national or permanent
resident is a person referred to in section F of Article 1 of the Refugee
Convention; or
…
|
15. Les décisions ci-après ont, quant aux faits,
force de chose jugée pour le constat de l’interdiction de territoire d’un
étranger ou d’un résident permanent au titre de l’alinéa 35(1)a) de la
Loi :
…
b) toute
décision de la Commission, fondée sur les conclusions que l’intéressé a
commis un crime de guerre ou un crime contre l’humanité, qu’il est visé par
la section F de l’article premier de la Convention sur les réfugiés;
…
|
[24]
The following provisions of the Refugee
Protection Division Rules, SOR/2002-228, are also relevant:
|
18. Before using any information or opinion that
is within its specialized knowledge, the Division must notify the claimant or
protected person, and the Minister if the Minister is present at the hearing,
and give them a chance to
(a) make representations on the reliability and
use of the information or opinion; and
(b)
give evidence in support of their representations.
|
18. Avant d’utiliser un renseignement ou une
opinion qui est du ressort de sa spécialisation, la Section en avise le
demandeur d’asile ou la personne protégée et le ministre — si celui-ci est
présent à l’audience — et leur donne la possibilité de :
a) faire
des observations sur la fiabilité et l’utilisation du renseignement ou de
l’opinion;
b) fournir des éléments de preuve à l’appui de leurs observations.
|
|
23. (1) If the Division believes, before a
hearing begins, that there is a possibility that sections E or F of Article 1
of the Refugee Convention applies to the claim, the Division must notify the
Minister in writing and provide any relevant information to the Minister.
…
(3) The Division must provide to the claimant
a copy of any notice or information provided to the Minister.
|
23. (1) Si elle croit, avant l’audience, qu’il y
a une possibilité que les sections E ou F de l’article premier de la
Convention sur les réfugiés s’appliquent à la demande d’asile, la Section en
avise par écrit le ministre et lui transmet les renseignements pertinents.
…
(3) La Section transmet au demandeur d’asile une
copie de tout avis et renseignement transmis au ministre.
|
[25]
Finally, the following provision of the Canadian
Bill of Rights, S.C. 1960, c. 44, is also relevant:
|
2. Every law of Canada shall, unless it is
expressly declared by an Act of the Parliament of Canada that it shall
operate notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to authorize the
abrogation, abridgment or infringement of any of the rights or freedoms
herein recognized and declared, and in particular, no law of Canada shall be
construed or applied so as to
…
(d)
authorize a court, tribunal, commission, board or other authority to compel a
person to give evidence if he is denied counsel, protection against self
crimination or other constitutional safeguards;
|
2. Toute loi du Canada, à moins qu’une loi du Parlement du
Canada ne déclare expressément qu’elle s’appliquera nonobstant la Déclaration
canadienne des droits, doit s’interpréter et s’appliquer de manière à ne
pas supprimer, restreindre ou enfreindre l’un quelconque des droits ou des
libertés reconnus et déclarés aux présentes, ni à en autoriser la
suppression, la diminution ou la transgression, et en particulier, nulle loi
du Canada ne doit s’interpréter ni s’appliquer comme
…
d) autorisant
une cour, un tribunal, une commission, un office, un conseil ou une autre
autorité à contraindre une personne à témoigner si on lui refuse le secours
d’un avocat, la protection contre son propre témoignage ou l’exercice de
toute garantie d’ordre constitutionnel;
|
* * * * * * * *
[26]
This application for judicial review raises the
following issues:
1) Did the tribunal act fairly
a) by admitting in evidence the applicant’s interview with the CBSA
and by basing its decision on this interview;
b) by not disclosing to the applicant the answers he gave at this
interview; or
c) by being partial?
2) Did the tribunal err in analyzing the application of section 98
of the Act without having analyzed the application of sections 96 and 97?
3) Did the tribunal err by concluding that section 98 of the
Act applied to the applicant?
* * * * * * * *
[27]
The first issue concerns procedural fairness.
The Court will intervene if the applicant’s rights on this point were not
respected. The second issue is a question of law, and the standard of review of
correctness applies. The third issue concerns the tribunal’s application of the
law regarding section 98 to the facts of the case and must therefore be
decided on the basis of the standard of reasonableness (see for example Ryivuze,
above, at paragraph 15 and Chowdhury 2006, above, at
paragraph 13).
I. Procedural
Fairness
A. Admission
in evidence of the applicant’s interview with the CBSA
[28]
As far as the lack of a notice to the
applicant’s consultant is concerned, it is up to the applicant to prove it
because he has alleged this fact and has claimed that it is an infringement of
his procedural rights. In his affidavit, however, he only affirmed that he “did
not have the possibility to have a lawyer at this time”. This sentence is vague
but I do not see how it establishes on a balance of probabilities that the
applicant’s consultant was not advised. In any event, the evidence shows that a
copy of the letter from the RPD to the CBSA had been sent to the applicant’s
consultant, and he was therefore aware of a possible intervention by the CBSA
in this file. In addition, the applicant did not object to the interview being
conducted in the absence of his consultant or an attorney. He said nothing when
he was asked if he had any questions at the beginning of the interview. I
therefore find that the applicant’s rights were not infringed.
[29]
The fact that the applicant was not specifically
warned that the information supplied at the interview could be used in the
analysis of his file is also not an infringement of procedural fairness. It was
explained to the applicant that the purpose of the interview was “to look for
much more details [sic] than your Personal Information Form”. It is
difficult for me to believe that he could have imagined that he was being met
out of mere curiosity.
[30]
In addition, procedural fairness did not require
that the tribunal mention the letter at the hearing. It had no evidentiary
value and had strictly nothing to do with the tribunal’s specialized knowledge.
In any event, the applicant cannot claim that he was taken by surprise by this
letter because his consultant had received a copy.
[31]
Finally, as was explained by Justice Le Dain of
the Federal Court of Appeal in Ziegler v. Hunter (Combines Investigation
Act, Director of Investigation and Research), [1984] 2 F.C. 608, paragraph
2(d) of the Canadian Bill of Rights “. . . contemplates that a
person may be compelled to give evidence which may tend to incriminate him, so
that the protection referred to can only be protection against the use of his
evidence against him in subsequent criminal proceedings.” It is not necessary
to underline the fact that Justice Marceau’s opinion was also to the same
effect. The applicant’s argument based on this provision must therefore be
dismissed.
B. Lack
of Disclosure
[32]
As was underlined by the respondent, the
transcript of the hearing confirms that the tribunal had invited the applicant
to show the mistakes in the record of his interview with the CBSA (see the Tribunal
Record at page 900). However, the applicant could show only one error, and
he requested permission to examine the record to see if there were any others.
This request was refused by the tribunal. In my opinion this was not an
omission to disclose evidence to the applicant. This evidence was available to
him before the hearing, and, as the tribunal noted, it was under no obligation
during the hearing to remedy the applicant’s lack of preparation. The same
thing applies to the documentary evidence. I also agree with the respondent
that, as was explained by the Federal Court of Appeal in Szczecka c. Canada (M.E.I.) (1993), 116 D.L.R. (4th) 333, the tribunal was not required to
translate the record for the applicant.
C.
The Tribunal’s Alleged Partiality
[33]
The applicant’s allegations on this point are
unfounded. First, the RPD respected a regulatory requirement by sending the
letter concerning the applicant’s record to the CBSA, and the person who wrote
that letter was not the same one who subsequently processed the applicant’s
file. The applicant did not allege that the RPD was not independent but when
mentioning partiality he referred to the tribunal’s mindset, which had nothing
to do with the sending of the letter in question. Moreover, the letter merely
mentioned that “an issue of exclusion under section F(c) of Article 1 of
the Refugee Convention may arise in the present case” (Tribunal Record,
page 91; emphasis added). Stating that an issue arises is not prejudging
the answer that will be given. Then, as was underlined by the respondent, the
fact that the AL committed
abuses when it was in power is not really contested. The issues in this case
were to determine whether these abuses could be described as being contrary to
the principles and purposes of the United Nations and, if so, whether the
applicant could be held responsible. The applicant is challenging the following
question put by the tribunal: “You are a member of the party that when was in
power committed serious human rights violations, and the questions are there to
see how much you knew about it and what you knew about it. Do you understand?” Finally,
the fact that the tribunal did not interpret the evidence submitted by the
applicant the way he hoped does not in any way establish that it acted in bad
faith.
II. Order
of Application of Sections 96, 97 and 98 of the Act
[34]
As the Federal Court of Appeal explained in Fernandopulle
v. Minister of Citizenship and Immigration, 2005 FCA 91, at paragraph 17,
“However, the Handbook is not law. It cannot be treated as more than a guide.”
This Court is bound not by the recommendations in the Handbook but by the Court
of Appeal’s case-law, according to which the tribunal not only was not required
to rule on the possibility that the applicant was a refugee or a person in need
of protection, but in fact could not do so without exceeding its jurisdiction (see
Xie v. Canada (Minister of Citizenship and Immigration ), [2005] 1 F.C.R.
304 (C.A.), at paragraph 38).
[35]
In any event, I do not see how, even if the tribunal
had examined the file on the basis of sections 96 and 97 of the Act before
dealing with section 98, its conclusion could have been any different. No
matter how serious the consequences of the tribunal’s decision may be (and I
note that the provisions invoked by the applicant do not apply to his case
because the tribunal did not conclude that he had committed a terrorist act, a
war crime or a crime against humanity), that decision would have been the same.
III. Application
of Section 98 of the Act to the Applicant
[36]
The Supreme Court of Canada has defined the
meaning of the expression “acts contrary to the purposes and principles of the
United Nations” in Pushpanathan, above, at paragraph 65. This
expression covers acts about which “. . . there is consensus in international
law that particular acts constitute sufficiently serious and sustained
violations of fundamental human rights as to amount to persecution, or are explicitly
recognized as contrary to the purposes and principles of the United Nations . .
.”. The Supreme Court also ruled at paragraph 68 that a person who did not hold
power in a State may nevertheless be held responsible for such acts in spite of
a contrary opinion expressed in the Handbook.
[37]
Invoking the Handbook, the applicant pleaded for
a narrower definition of the notion of acts contrary to the purposes and
principles of the United Nations and submitted that only members of governments
may be held liable. However, just as with the relationship between
sections 96, 97 and 98 of the Act, this Court is bound by Canadian case-law
and not by the Handbook. The applicant also alleged that Pushpanathan no
longer applies because the relevant legislation has changed. However, the
concept of exclusion provided by the Convention is part of the new Act, as it
was with the former Immigration Act, and nothing warrants a different
interpretation.
[38]
In my opinion, the tribunal’s finding that the AL had committed acts that were contrary to
the purposes and principles of the United Nations is reasonable. The tribunal
studied the evidence carefully. It noted the involvement of party members and
of its leaders at various levels in political violence and sometimes murder. It
also noted that the AL (like
the other parties) used the police for its political purposes, to intimidate
and even to eliminate opponents. In such a context, it is reasonable not to
distinguish the political party and the government on which it is based because
the government operates for the benefit of the party. In any event, the tribunal
concluded that the AL and its
associated organizations were directly involved in the infringement of human
rights and used government institutions for that purpose. The tribunal was
entitled to conclude that the AL was guilty of “. . . serious, sustained or systemic violations of
fundamental human rights which amount to persecution . . .” (Pushpanathan,
above, at paragraph 64) and therefore of acts contrary to the purposes and
principles of the United Nations.
[39]
The applicant’s arguments to the effect that in
spite of his membership in the AL, he cannot be held liable for these acts cannot be allowed. By
submitting that because there is no evidence of his personal involvement in
specific infringements of human rights he cannot be held liable for those
committed by the AL, the
applicant is once again inviting the Court to ignore the case-law. However, the
case-law is clear. A person who willingly associates with another person or an
organization guilty of acts contrary to the purposes and principles of the
United Nations becomes an accomplice and shares the guilt. Personal involvement
in specific infringements of human rights is not necessary; otherwise, the objective
of ensuring that “. . . those who are responsible for the persecution which
creates refugees should not enjoy the benefits of a Convention designed to
protect those refugees” (Pushpanathan, at paragraph 63) would not
be fully attained.
[40]
The tribunal identified and applied this case-law,
including the test developed by the Federal Court of Appeal in Sivakumar,
above, and summarized in Ryivuze, above. In doing so the tribunal took
into consideration the nature of the AL, the method of recruitment of the applicant, his positions within
the organization, the knowledge he had of the organization’s atrocities, the
length of time of his involvement and the opportunity he had to leave the
organization. Once this is done, all this Court has to do is to ensure that the
decision is justified, transparent and intelligible (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, at paragraph 47).
[41]
The applicant’s arguments basically concern the
knowledge he had of the AL’s
actions. In my opinion, the tribunal’s conclusions on this point are
reasonable. The tribunal noted that political violence was frequent in Bangladesh, was used by all political
parties and by the police at the request of the party in power and that the
press covered this regularly. On the basis of these facts, the tribunal could
reasonably infer that the applicant must have known that the AL was responsible for systematic
infringements of human rights. The fact that there is no evidence about the
applicant’s district is of no importance because the documentary evidence shows
that these infringements were committed throughout the country.
[42]
The applicant’s arguments to the effect that he
was entitled under the Universal Declaration of Human Rights to
participate in the political life of his country, that the goal of taking and
exercising political power which he pursued within the AL was not illegitimate and the tribunal could not “require” that he
leave the party must also be dismissed. The right to take part in the
government of his country cannot include the right to intimidate his political
opponents and even less so to use violence against them. However, this is what
the AL systematically did. The tribunal
reasonably concluded that the applicant could not have been unaware of this.
Having joined the party and having remained an active member for nine years,
the applicant chose to be part of a system based on brutality and the denial of
the rights of his opponents. It was only when this system turned against him
that the applicant apparently discovered the value of the rights protected by
the Universal Declaration.
* * * * * * * *
[43]
For these reasons, the application for judicial
review is dismissed.
[44]
After having argued that to come within the
ambit of article 1F(c) of the United Nations Convention Relating
to the Status of Refugees a person must be guilty of acts contrary to the
purposes and principles of the United Nations when he was participating in
the exercise of power within a State and contributed to the infringement of
these purposes and principles by this State, counsel for the applicant
proposed the certification of the following question:
[translation]
Was the scope
given by the tribunal to article 1F(c) of the 1951 Convention
Relating to the Status of Refugees and the 1967 Protocol Relating to the
Status of Refugees regarding the acts and the persons included in this
provision as it was expressed in Pushpanathan v. Canada (M.C.I.) 1998 1 S.C.R.,
especially at paragraphs 65 to 70, consistent with:
(i) The
interpretation of international law as expressed by the UNHCR in its “Background
Note on the Application of Exclusion Clauses: Article 1F of the 1951 Convention
Relating to the Status of Refugees” of September 4, 2003;
(ii) Did
the tribunal accordingly err in law by not taking into consideration or by
derogating from the UNHCR’s interpretation on this point and by replacing it
with the criteria in Pushpanathan, taking into consideration the fact
that subsection 3(3) of the IRPA now requires that this Act be construed
and applied in a manner that:
(f) complies
with international human rights instruments to which Canada is signatory.
[45]
The applicant’s counsel invoked a 2003 Information
Note from the High Commissariat to convince the Court to certify a
question, which, according to counsel for the respondent, would allow him to [translation] “appeal to the Federal
Court of Appeal and finally to the Supreme Court of Canada, which could then
revise its opinion stated at paragraph 68 of its reasons in the 1998 judgment of
Pushpanathan,” above.
[46]
However, in a document entitled UNHCR
Statement on Article 1F of the 1951 Convention, dated July 2009, at
pages 29 and 30, which was referred to by counsel for the respondent, the same
United Nations High Commissariat stated the following:
Based on the
above considerations and in light of today’s reality, the commission of crimes
which, because of their nature and gravity, are capable of affecting
international peace and security, or the relations between States, or which
constitute serious and sustained violations of human rights, may not in all
cases require the holding of a position of authority within a State or
State-like entity. Thus, in addition to persons in positions of State
authority, individuals acting in a personal capacity, including as leaders of a
group responsible for “acts of terrorism” which are contrary to the principles
and purpose(s) of the United Nations, could also be capable of falling under
Article 1F(c), where they are found to possess individual responsibility
based on the requisite tests …
. . .
Various Member
States, namely Belgium, . . .
Czech Republic, . . . Slovak
Republic, Spain and Sweden have limited the application of
Article 1F(c) of the 1951 Convention to persons exercising a leadership
role or holding a position of authority within a State. Moreover, prevalent Member State practice accords particular
weight to the “individual responsibility” requirement, holding that mere
membership in a terrorist organization is not enough to bring the person
concerned within the exclusion clauses. In the UK, by contrast, the asylum
authorities and courts have concluded in a number of cases that a person who is
not acting on behalf of a State can commit an act contrary to the purposes and
principles of the United Nations, and that Article 1F(c) can apply.
(Note #148: KK (Article 1F(c) Turkey) v. Secretary of State for the Home
Department [2004] UKIAT 00101 cites UNSCR 1377 and refers to the UN
Security Council’s “unequivocal condemnation of all acts, methods and practices
of terrorism as criminal and unjustifiable, regardless of their motivation, in
all their forms and manifestations, wherever and by whomever committed”.
This position has been approved recently by the Court of Appeal in Al-Sirri
v. Secretary of State for the Home Department [2009] EWCA Civ 222, which
refers to the Supreme Court of Canada’s decision in Pushpanathan v. Canada …
(Emphasis
added.)
[47]
Considering that the opinion of the United
Nations High Commissariat on the issue of who may be considered to infringe the
purposes and principles of the United Nations is now identical to the Supreme
Court’s ruling in Pushpanathan, above, at paragraph 68, I agree with
counsel for the respondent that the question proposed by counsel for the
applicant cannot be certified.
JUDGMENT
The
application for the judicial review of the decision of May 8, 2009, by a member
of the Refugee Protection Division of the Immigration and Refugee Board is
dismissed.
“Yvon Pinard”
Certified true
translation
Francie Gow, BCL, LLB
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