Date:
20130715
Docket:
IMM-8311-12
Citation:
2013 FC 790
Ottawa, Ontario,
July 15, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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SUMAN RAJ SAPKOTA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
Applicant seeks judicial review of a decision of the Refugee Protection
Division [RPD] of the Immigration and Refugee Board dated June 28, 2012,
wherein it was determined that he is excluded from refugee protection on the
basis that he was complicit in crimes against humanity in Nepal as he was a member
of the Nepali Police Force [NPF] pursuant to Article 1F(a) of the United Nations
Convention Relating to the Status of Refugees [Refugee Convention]. The RPD
held five (5) days of hearing and the certified tribunal record [CTR] consists of
twelve (12) volumes.
I. Facts
[2]
The
Applicant was a police officer with the Nepali Police Service from 1991 until
his departure from Nepal in 2009. After his training, he was given the rank of
Assistant Sub-Inspector and was later promoted to the rank of Sub-Inspector and
finally to the rank of Inspector.
[3]
In
early 1996, with the beginning of the Maoist revolution, he was posted to the Chaurjari,
Rukum District, which was a troubled area where the Maoists were beginning to
wage their revolution. He spent six (6) months in the area and was considered
as the “officer in charge.” He had approximately thirty (30) policemen under
his supervision and his group was responsible for six (6) Village Development
Committees. On two (2) occasions, the Maoists launched attacks against his
group. The Maoists captured and killed three (3) police officers and claimed
responsibility for the deaths.
[4]
After
his first posting in the Rukum district, the Applicant was posted in many other
areas with strong Maoist occupation, where he spent a total of ten (10) years.
[5]
In
2006, he began receiving threatening calls from the Maoists, who also
threatened to abduct his seven-year-old son. The Applicant placed his son in a
boarding school in the Kathmandu area in April 2007. In May 2007, while on a
motorbike, four (4) people approached him and told him to stop. He was attacked
with knives. The attackers fled while bystanders tried to help the Applicant.
He was rushed to a local hospital where he spent nearly two (2) weeks.
[6]
Upon
release from the hospital, he rested at home and returned to his job as a
police officer but spent most of his time at the station doing administrative work.
He began to make inquiries about leaving the country. After receiving a U.S. visa, he began to try to make arrangements for his wife and son. On February 18, 2009,
the Applicant left Kathmandu for the United States. He spent fourteen (14) days
at his sister’s home in the United States and then made his way to a refugee
shelter in Buffalo. He made arrangements for an appointment at the Canadian
border on March 24, 2009, at which time he was permitted to enter Canada. He fears returning to Nepal as the Maoists or other affiliated Communist members
may torture, abduct or kill him if they find him.
II. Decision
under review
[7]
The
RPD began by setting out the Applicant’s claim to refugee protection pursuant
to section 96 and subsection 97(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
[8]
The
RPD then turned to the issue of exclusion under Article 1F(a) of the Refugee
Convention and acknowledged the Minister’s submission that the crimes against
humanity in this matter are murder, forced disappearances, torture and other
inhuman acts causing great suffering or bodily injury.
[9]
The
Member cited Ramirez v Canada (Minister of Employment and Immigration), (1992)
89 DLR (4th) 173, 135 NR 390 (FCA) [Ramirez] for the proposition that a
claimant may be found to be an accomplice and excludable if the requirements of
complicity are met.
[10]
With
respect to the nature of the organization, the Member found that the NPF assumed
responsibility of the internal security and that the documentary evidence establishes
that the NPF committed serious human rights abuses such as forced
disappearances, torture, extrajudicial executions, random killings, abuse in
detention, rape, etc. The Member acknowledged that the NPF did not have a
limited, brutal purpose but was involved in crimes against humanity.
[11]
In
consideration of the NPF’s method of recruitment, the Member found that the
Applicant joined the organization to get a job upon completing college.
[12]
The
Member then assessed the Applicant’s position/rank in the organization, which
primarily consists of the following stages:
- The
Applicant initially gathered intelligence regarding political meetings.
- He
was promoted and became a member of the armed police. His positions were
in areas where Maoist rebels were active over the course of ten (10) years
during which time he supervised and was responsible for between twenty (20)
and forty (40) officers, depending on the location.
- At
the conclusion of the ten (10) years, in 2005, he was posted to the
Central Jail in Kathmandu, which holds 1500-1600 detainees. His duties
consisted of ensuring that no one escaped and to transport detainees.
- He
secured a promotion to the position of Inspector in 2007 and transferred
to the armed police main base in Naxal where he was subordinate to the
Superintendent of Police and the Deputy Superintendent of Police. There
were three (3) Inspectors, including the Applicant, and four (4) divisions
of 125 police officers each who reported to the Inspectors. His
responsibilities were supervisory in nature and included preparing
paperwork for transfers, weekly program schedules and conducting student
exams.
[13]
With
respect to the Applicant’s knowledge of the organization’s atrocities, the
Member noted that the Applicant denied knowledge of any act committed by the NPF.
In particular, the Minister referred to documentary evidence that after March
10, 2008, Tibetans living in Kathmandu protested against the Chinese
government’s crackdown in Tibet. Nepali authorities opposed the demonstrations
and engaged in excessive use of force, arbitrary arrest, sexual assault of
women during arrest, arbitrary and preventative detention, beatings, unlawful
threats of deportation and unnecessary restrictions on freedom of movement. The
Applicant remembered the demonstrations but testified that he did not go. His
colleagues attended and he would have gone if needed. In the course of the
demonstrations, he ordered police officers not to touch protestors and that
female police officers would deal with female protestors. If an officer’s
inappropriate behaviour persisted, the Applicant said there were measures in
place, including stopping the officer’s promotion grade.
[14]
The
Member provided a detailed review of the documentary evidence concerning the
safety of Tibetans in Kathmandu. The RPD noted that such evidence establishes
that the police acted as if they were above the law and that torture and
mistreatment in custody was widespread. The documentation also showed that
torture in police detention centres is rampant. The Applicant responded that he
heard rumours of torture during police incident investigations but did not
address the rumours because he was too busy with his work. The Applicant
explained that the issue also went unaddressed by the other Inspectors because
they were different from the detainee section. The Applicant also stated that
his position was that of a trainer and that after the trainees left, they were
not under his direction. The documentation also reveals that prison conditions
did not meet international standards.
[15]
The
Member then examined the two (2) times the Applicant came into contact with
Maoist insurgents during his ten (10) years of postings, writing that the first
time two (2) police officers were killed and the second time one (1) police officer
was killed. The Applicant stated that he was unaware of abuses by the security
forces during those ten (10) years. The documentary evidence describes abuse in
police custody in 1996 and 1997, with no further investigations taking place. A
particular incident in 1998 where the police killed and burned nine (9)
villagers was documented and the Applicant testified that he arrived to another
village of the same district in 1999.
[16]
Given
the Applicant’s position, the location of the armed police base and his
association with leadership at the base, the Member concluded that the
Applicant must have been aware of the crimes.
[17]
As
to the length of time in the organization, the Member found the Applicant
remained in his position up to until he chose to leave Nepal, totalling approximately eighteen (18) years.
[18]
Finally,
as to the opportunity to leave the organization, the Member wrote that the
Applicant left Nepal, not to protest police actions, but rather because of
alleged threats against him and his family.
[19]
The
Member went on to make a general comment that the Applicant answered questions
evasively, which was commented on by his own counsel.
[20]
The
Member concluded that there are serious reasons for considering that the
Applicant was complicit in crimes against humanity committed by the NPF by
virtue of his membership and is thus excluded under Article 1F(a) of the Refugee
Convention.
III. Applicant’s
submissions
[21]
The
Applicant submits that the RPD erred in finding that the Applicant is excluded
from protection under Article 1F(a) of the Refugee Convention for being
complicit in crimes against humanity.
[22]
First,
the Applicant argues that the Minister bears the onus of proving the
Applicant’s involvement in the crime against humanity. The Applicant submits
that no proof was provided to the Member except the country condition documents
which generalized the actions of the NPF.
[23]
The
Applicant submits that
he joined the NPF not due to political belief but rather for his livelihood. He
also relates that since the end of Monarchy rule in Nepal and the ensuing peace
process in 2006, the security forces and police have not been accused of crimes
against humanity. The Applicant submits that he does not meet the test
established in Ramirez, above of “personal and knowing participation”
and that membership in an organization that commits international offences from
time to time is not normally sufficient for exclusion from refugee status. The
Applicant submits that he should not be excluded on the basis of one single
incident of police excess.
[24]
Second,
the Applicant submits that the RPD erred in law by misinterpreting the concept
of complicity in the context of Article 1F(a) of the Refugee Convention.
[25]
He
argues that his rank of Inspector within the NPF is an important factor and
that at this position he did not make policy decisions. He submits that he was
a junior officer and that in 2010 there were approximately 11234 Inspectors in
the NPF. As such, the Applicant argues that he did not have the requisite mens
rea component of the “personal and knowing participation” factor.
[26]
Third,
the Applicant submits that the RPD made an erroneous finding of fact when it
considered that he had been complicit in crimes committed by his government. He argues that
the RPD failed to observe that he was just a paid employee of the NPF who did
not perform any acts of crimes against humanity and was not aware of acts being
committed. To be excluded from refugee protection, there must either be
evidence of membership in an organization that is singularly devoted to crimes
against humanity or evidence of knowing and personal participation in those
crimes. Neither is present here.
IV. Respondent’s
submissions
[27]
The
Respondent first submits that the Member applied the correct standard of proof
of “serious grounds for considering,” which requires something more than mere
suspicion but less than the civil standard of proof on a balance of
probabilities. The Respondent submits that the standard of proof was reasonably
applied to determine the Applicant’s complicity, based on the documentary
evidence of the NPF abuses and the Applicant’s level of involvement in the
organization. Given that the standard of proof was “serious reasons for
considering,” neither the Minister nor the RPD were required to prove “conclusively
that the Applicant was complicit in crimes against humanity committed by the
Nepali Police Force.”
[28]
The
Respondent argues that the Member reasonably found that human rights abuses
committed by the NPF were widespread. The Respondent submits that the
definition of crimes against humanity, as per subsection 4(3) of the Crimes
Against Humanity and War Crimes Act, SC 2000, c 24 includes murder,
extermination, enslavement, deportation, imprisonment, torture, sexual
violence, and persecution. The Respondent notes that the Rome Statute of the
International Criminal Court, 17 July 1999, 2187 UNTS 90, entered into
force 1 July 2002 also lists enforced disappearance of persons as a crime
against humanity and that this statute is endorsed in Canada as a source of
customary law.
[29]
The
Respondent submits that the Supreme Court of Canada established in Mugesera
v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 119,
197 CCC (3d) 233 [Mugesera] that a criminal act rises to the level of a
crime against humanity when four (4) elements are made out.
[30]
The
first element, which is that enumerated proscribed acts were committed,
is evidenced in the supporting documents that the NPF committed acts of
extrajudicial executions, random killings, abuse in detention and rape.
[31]
The
second element, which is that the act was committed as part of a widespread and
systematic attack, is also supported in the documentary evidence which
describes the attacks as “widespread” and that in some years the NPF committed
“the largest number of disappearances in the world.”
[32]
Third,
the act must be directed against any civilian population or any identifiable
group of persons. The documentary evidence provides that Maoist insurgents,
protestors, villagers and adolescents were targeted by the NPF, establishing
that the crimes were committed against a civilian population.
[33]
Fourth,
the Respondent submits that the Member reviewed the totality of the evidence
and found, supporting the fourth element, that the Applicant knew his acts
comprised part of the attack. In conclusion, as there was evidence to satisfy
each of the criteria, the Member had reasonable grounds to determine that the
NPF committed crimes against humanity during the time the Applicant was
involved with the organization.
[34]
The
Respondent further submits that the RPD reasonably applied the test for
complicity. The starting point for complicity in international crime is
“personal and knowing participation” or a “shared common purpose” and active
membership is not required.
[35]
In
review of the factors set out in Ramirez, above, the Respondent submits
that, with regards to the nature of the organization, the NPF was not a “brutal
purpose” organization, but was involved in crimes against humanity and that this
conclusion was reasonably open to the Member on the evidence. As for the
organization’s method of recruitment, the Respondent notes that the Applicant
joined the NPF of his own free will and that he was not compelled to join the organization
for any reason, economic or otherwise. The Respondent submits that the finding
that the Applicant’s position/rank in the organization was higher than his
allegation that he was a junior officer was supported by the training he
received to be in a leadership role and by the fact that he was twice promoted.
He was transferred to various areas where Maoists rebels were active and
responsible for twenty (20) to forty (40) officers at any given time. Moreover,
there was a case law before the RPD that shows that ordinary members of police/security
forces were found complicit in crimes against humanity.
[36]
The
Respondent argues that the Applicant had knowledge of atrocities as the RPD in
its decision outlined the evidence that NPF abuses were widespread and that
specific incidents occurred in regions where the Applicant was posted. As the
trier of fact, it was open to the RPD to find that the Applicant must have been
aware that crimes were being committed. The Respondent cites the Member’s
finding concerning the length of time spent at the organization and the fact that
he did not take the opportunity to leave the organization until he received
threats against himself and his family.
[37]
The
Respondent cites Mugesera, above to support the proposition that when a
person has knowledge that his organization is committing crimes against
humanity and does not take steps to prevent them from occurring (provided he
has the power to do so), nor disengages himself at the earliest opportunity,
but lends active support for the group, he will have a shared common purpose
and be held to be complicit. The Respondent submits that having assessed the factors
set out in Ramirez, above, the Member reasonably concluded that the
Applicant was complicit in the NPF crimes against humanity.
V. Applicant’s reply
[38]
The
Applicant argues that the Respondent has not been able to show that the NPF
have committed crimes against humanity. Indeed, it refers to both, the NPF as
well as the Paramilitary Armed Force [PAF] created in 2001 as being involved in
internal security, which has the effect of reducing the number of incidents of
abuse committed by the NPF starting from 2002. Indeed, the majority of the documentary
evidence refers to security forces which do not necessarily point to the NPF as
the Armed Forces and the PAF were given more power to maintain security after
2001.
[39]
Moreover,
the specific incidences involving human rights abuse by the NPF are quoted in
a report from 1994 and such back dated incidents should not be weighted so
heavily.
VI. Issue
1. Did the Member err in
finding that the Applicant is excluded from protection under Article 1F(a) of
the Refugee Convention for being complicit in crimes against humanity?
VII. Standard
of review
[40]
The
standard of review applicable to the issue of whether the facts
give rise to exclusion is a question of mixed fact and law yielding substantial
deference to the RPD. The standard of correctness applies to determine whether
the correct legal test for exclusion was applied under Article 1F(a) of the Refugee Convention as it is a question of law of
general application to the refugee determination process (Canada (Minister
of Citizenship and Immigration) v Ekanza Ezokola, 2011 FCA 224 at para 39,
335 DLR (4th) 164; Canada (Minister of Citizenship and Immigration) v Zeng,
2010 FCA 118 at para 11, 402 NR 154). However, in the present case, the
standard of reasonableness is applicable as the Applicant is challenging the
RPD’s determination that he should be excluded on the basis of Article 1F(a)
of the Refugee Convention and not whether the RPD
applied the correct legal test.
VIII. Analysis
[41]
The
RPD’s determination that there are serious reasons for considering that he
should be excluded on the basis of Article 1F(a)
of the Refugee Convention is reasonable.
[42]
First,
it is important to recall that in Ramirez,
above and Moreno v
Canada (Minister of Employment and Immigration), [1994] 1 FC 298 at para 15,
159 NR 210 (FCA), the Federal Court of Appeal determined that the Minister must
abide by the standard of proof comprised in the expression “serious reasons for
considering” in subparagraph 1F(a) of the Refugee Convention.
This standard is much lower than the one required in criminal law, “beyond a
reasonable doubt,” or in civil law, “on a balance of probabilities.”
[43]
With
regards to the Applicant’s argument that the RPD erred in concluding that the
evidence regarding human rights abuse involves Nepalese security forces
generally and does not point specifically to the NPF, it cannot be accepted by
this Court. There is substantive documentary evidence in the CTR to the effect
that the NPF was directly involved in torture, extrajudicial executions, random
killings, abuse in detention, rape, etc. during the Maoist revolution, which started
in 1996. Moreover, a reading of the RPD’s decision shows that it properly considered
the four (4) factors set out in Mugesera, above at para 119 in
determining whether the acts committed by the NPF rise to the level of a crime
against humanity. The said factors are the following: an
enumerated proscribed act was committed, the act was committed as part of a widespread
or systematic attack, the attack was directed against any civilian population or any identifiable
group of persons and the person committing the proscribed act knew of the
attack and knew or took the risk that his or her act comprised a part of that
attack.
[44]
Moreover,
a number of reports contained in the CTR establish that human rights abuse by
the NPF were “widespread” and directly targeted the Maoist insurgents. Finally,
the evidence shows that the Applicant must have been aware of the fact that
crimes were being committed by the NPF. Therefore, the RPD’s determination that
the NPF was involved in crimes against humanity is reasonable.
[45]
With
regards to the RPD’s determination as to complicity, the case law is to the
effect that active membership is not required but that a person is considered
as complicit if he contributes to the organization while being aware that it is
committing crimes against humanity (Ramirez, above). Complicity rests on the existence of a shared common purpose
and the common knowledge that all of the parties may have of it, which is
defined as “personal and knowing participation” (Sivakumar v
Canada (Minister of Employment and Immigration), [1994] 1 FC
433, 163 NR 197 (FCA)). If a senior official remains in his or her
position, defends the interests of the government for whom he or she works and
is aware of the relevant atrocities, this is sufficient to demonstrate
complicity (Canada (Minister of Citizenship and Immigration v Ezokola),
2011 FCA 224 at para 72, 335 DLR (4th) 164).
[46]
The Federal Court of Appeal articulated six (6) factors
relevant to participation in Bahamin
v Canada (Minister of Employment and Immigration) (1994), 171 NR 79, [1994] FCJ No 961:
the nature of the organization, method of recruitment; position/rank in the
organization, knowledge of atrocities, length of time in the organization, and
opportunity to leave the organization. Each of them was considered by the RPD.
[47]
As
for the Applicant’s position in the organization, the Federal Court of Appeal
established the following principle in Sivakumar, above at 202: “Bearing in mind that each
case must be decided on its facts, the closer one is to being a leader rather
than an ordinary member, the more likely it is that an inference
will be drawn that one knew of the crime and shared the organization's purpose
in committing that crime.”
[48]
The
Applicant’s position in the NPF is probably one of the most illustrative indicators
of his complicity in the atrocities committed. The Applicant was posted at the
Central Jail in Sundhara, Kathmandu, where detainees included Maoists. He
occupied a high level position, working just under the supervision of the
Inspector, who was working under the supervision of the Deputy Superintendent
of Police, who held the highest position at the jail. He was also in direct
contact with the detainees as he took care of their transfer and made sure no
one escaped. Therefore, it may reasonably be inferred that while fulfilling his
duties which included ensuring that no one escaped and transporting detainees, the
Applicant was complicit in the human rights abuses, especially considering his
high position while working at the jail. Indeed, it has been reliably established
that the NPF did commit acts of torture on detainees.
[49]
Moreover,
before working at the Kathmandu jail, he fought Maoist rebels for about ten (10)
years, while occupying various positions in the NPF, which all granted him a
leadership and supervisory role. Indeed, he was at all times, responsible of a
group of thirty (30) to forty (40) policemen.
[50]
With
regards to complicity, the RPD’s findings are reasonable. It
is a well established principle that a refugee claimant need not necessarily
have participated directly in the perpetration of human rights abuses and
crimes against humanity by the organization to which he belongs in order for
him to be found an accomplice to such acts (see Ramirez, above). Therefore, it
was not necessary for the RPD to have
evidence showing the Applicant’s personal implication in the crimes
specifically, in order to determine that he committed a crime against humanity
(Mata Mazima v Canada (Minister of Citizenship and Immigration), 2012 FC
698 at para 26, 223 ACWS (3d) 1010).
[51]
As
for his knowledge of the abuses, his alleged ignorance of the abuses committed
by the NPF was found not to be credible by the RPD. The Applicant gave a number
of evasive answers, especially regarding the protest by the Tibetans in front
of the Chinese consulate in Kathmandu in 2008. He claims that he did not attend
any of the demonstrations and that his colleague did. He explained that he
could only provide training to police officers showing inappropriate behaviour
and that the measures he could take against such police officers were limited. The
RPD reasonably questioned the validity of such explanation.
[52]
Another
relevant example is that when the Applicant was confronted with the evidence
that torture occurred during the detention of a number of Tibetans following
the protest, he explained that while at the base of the armed police, in Nexal,
he “heard rumours” but however did not investigate the matter as he “was too
busy with his work.” Such behaviour demonstrates the Applicant’s wilful
blindness and unwillingness to question the acts of the NPF. It was reasonable
for the RPD to reject his explanation.
[53]
Therefore,
the RPD reasonably drew a negative conclusion as to the Applicant’s credibility
resulting from his manifest denial of the acts committed by the NPF.
[54]
Although
membership in itself will not suffice to establish complicity, it is however a
relevant factor in determining personal and knowing participation. The Applicant
belonged to an organization engaged in crimes against
humanity, for a total of eighteen (18) years. For more than ten (10)
years, the organization was known to be involved in crimes against humanity
committed against the Maoists. The Applicant has not pointed to any
evidence showing that he disapproved of the actions committed by the NPF. To
the contrary, although he denies ever being aware of the acts committed by the
NPF, he decided to stay with this organization although it kept on committing
serious human rights abuses.
[55]
On
a final note, the RPD decision did rightly apply the law with the facts of this
case. It is well written and deals with the facts in a meticulous way. There is
no reason to intervene. It is a reasonable decision.
[56]
The parties were invited to submit
questions for certification but none were proposed.
JUDGMENT
THIS
COURT’S JUDGMENT IS THAT:
1.
This
application for judicial review is dismissed.
2.
No
question is certified.
“Simon Noël”
____________________________
Judge
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