Docket: IMM-5782-15
Citation:
2016 FC 822
Ottawa, Ontario, July 19, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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HINA TALPUR
MUHAMMAD ASGHAR
JAMALI
SUHAAD JAMALI
(MINOR)
SAMEEN JAMALI
(MINOR)
ALI HASNAIN
JAMALI (MINOR)
BY THEIR
LITIGATION GUARDIAN HINA TALPUR
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of
the November 17, 2015 decision of an immigration officer, denying permanent
resident status to the Principal Applicant, Ms. Hina Talpur, and her family on
the basis of her husband’s inadmissibility.
II.
Background
[2]
The Applicants are citizens of Pakistan who
applied for permanent residency based on the Principal Applicant’s occupation
as a financial manager. The immigration officer [the Officer] denied the
application after determining there were reasonable grounds to believe that the
Principal Applicant’s husband, Muhammad Asghar Jamali, was inadmissible pursuant
to subsection 35(1)(a) of the Immigration and Refugee Protection Act, SC
2001, c 27 [the Act], for complicity in crimes against humanity.
[3]
Mr. Jamali has been a police officer in the
Sindh region of Pakistan since 2002. Since 2005, he has worked primarily as an Assistant
Sub-Inspector of police in the city of Hyderabad. His duties involve patrol,
investigation, preparation of interrogations and supervision of the preliminary
investigation of cases. Over the course of his career he has received training on
human rights violations and how to incorporate gender sensitivity into
policing. His affidavit stresses that police officers face sanctions if they
violate force policies in this regard, and states he has not witnessed officers
acting unlawfully.
[4]
On July 16, 2015, the Principal Applicant
received a procedural fairness letter from the Canadian immigration office, conveying
that the application may not meet the requirements for permanent residence
status. The Officer found there may be reasonable grounds to believe that Mr. Jamali’s
involvement with the Sindh Police Force renders him inadmissible under subsection
35(1)(a) of the Act. The letter notes that during Mr. Jamali’s tenure as an
officer in the Sindh region, open source documentation indicates the force
perpetrated crimes against humanity, including “illegal
detentions, deaths in custody, police torture during interrogations and
extra-judicial killings”, in the locations where Mr. Jamali was
stationed.
[5]
The Applicants responded by letter on September
3, 2015, emphasizing that the Officer is required to consider the nexus between
an applicant’s role and duties within an organization and its criminal purpose.
Mr. Jamali’s evidence of non-involvement with crimes against humanity is not
contradicted, and thus any link to crimes against humanity committed by the
Sindh Police is tenuous at best. Moreover, the Applicants submitted that Mr.
Jamali was not voluntarily employed in the force, as he was appointed to the
position, and alternative job opportunities are limited.
[6]
The Applicants also submitted supporting
documentation, including:
(a) certificates relating to Mr. Jamali’s training in the prevention of
gender-based violence;
(b) documentation to illustrate the size and multifaceted nature of the
Sindh Police Force – it is a legitimate police force with multiple branches,
despite the evidence of its engagement in illegal activity;
(c) descriptions of Mr. Jamali’s role and rank within the force, which demonstrates
he is under direct supervision and control of a superior officer.
[7]
By letter dated November 17, 2015, the Officer
denied the application, having concluded after review of the application, the
procedural fairness letter, and the responding submissions, that although Mr.
Jamali himself may not have been directly involved in crimes against humanity,
there are reasonable grounds to believe he was complicit in such crimes. The Officer’s
reasons are contained in the Global Case Management System [GCMS] notes for the
file, which together with the November 17, 2015 letter, comprise the decision
under review.
[8]
The Officer disagreed with Mr. Jamali’s
assertion that there is no direct evidence of the Sindh Police Force carrying
out crimes against humanity. The Officer referenced several open source
documents indicating the Sindh Police do in fact carry out such crimes. Specifically,
a 2009 report of the Asian Human Rights Commission identifies Hyderabad – the
city in which Mr. Jamali has been employed almost continuously since 2005 – as having
a particularly high incidence of police torture. The Officer disagreed this is
a tenuous link: while the entire force is not directly responsible for these
crimes, those working “in an operational way on a
day-to-day basis, including investigating officers, inspectors and their
management” will inherently be more closely linked to the crimes than
others. This fact negated Mr. Jamali’s argument of non-complicity on the basis
he has not quickly ascended the ranks of the force.
[9]
The Officer also rejected Mr. Jamali’s argument
that his employment with the Sindh Police Force is non-voluntary. Though it may
not be his preferred occupation and he may face difficulties finding other
employment due to economic conditions, he is and has not been forced to stay in
his current job.
[10]
Citing Mugesera v Canada (Minister of
Citizenship and Immigration), 2005 SCC 40 [Mugesera], the Officer found
that torture constitutes a crime against humanity when it is widespread,
systematic and aimed at a civilian population or identifiable group. The open
source documentation conveys that the Sindh Police engage in torture as an
investigatory tool, murder, extrajudicial killings, beating and arbitrary
detentions on a scale that meets this standard.
[11]
The Officer considered the below six factors for
assessing whether an individual has voluntarily made a significant and knowing
contribution to an organization’s crime or criminal purpose enunciated by the
Supreme Court of Canada in Ezokola v Canada (Minister of Citizenship and
Immigration), 2013 SCC 40 at paras 91-100 [Ezokola]:
- the size and
nature of the organization;
- the part of the
organization with which the applicant was most directly concerned;
- the applicant’s
duties and activities within the organization;
- the applicant’s
position or rank in the organization;
- the length of
time the applicant was in the organization, particularly after acquiring
knowledge of the group’s crime or criminal purpose; and
- the method by
which the applicant was recruited and the applicant’s opportunity to leave
the organization.
[12]
Given the size and nature of the organization, the
Officer accepted that there will be many members of the Sindh Police Force who
are not complicit in crimes against humanity. However, the Officer found there
is an increased probability that an individual in an investigative and operational
role will be complicit. Mr. Jamali has been serving since 2002 to the present,
and the Officer found that “his lengthy and on-going
career … demonstrates his active support for the organization”. As an
Assistant Sub-Inspector Investigation Officer for over twelve years, Mr. Jamali
supervised investigations, visited places of incidents, and prepared memos and
interrogations. The documentation evinces the Sindh Police were responsible for
crimes against humanity throughout the province, that the city in which Mr.
Jamali served was a location of serious concern, and that these crimes occurred
in particular during arrest, detention and interrogation of suspects.
[13]
The Officer cited Mr. Jamali’s statement that he
has “not remained present at the scene of crimes
against humanity” as evidence that he was aware of such crimes and
merely turned his back. Further, in this case, Mr. Jamali’s lower rank does not
work in his favour, as it places him closer to the perpetration of the crimes.
His long-standing tenure and responsibilities during a time when documented
human rights abuses were committed by the Sindh Police provided reasonable
grounds for the Officer to believe he was complicit in the human rights
violations committed by the Sindh Police over the years.
[14]
On the above analysis, the Officer found there
were “reasonable grounds to believe that the applicant
made a significant and knowing contribution to the commission of the acts of
torture and other crimes against humanity perpetrated by the Sindh police force”,
and that accordingly Mr. Jamali was inadmissible pursuant to subsection
35(1)(a) of the Act.
III.
Issue
[15]
Was it reasonable for the Officer to find Mr.
Jamali inadmissible under subsection 35(1)(a) of the Act?
IV.
Standard of Review
[16]
The issue of whether Mr. Jamali could reasonably
have been excluded under subsection 35(1)(a) of the Act is a question of mixed
fact and law, and is thus reviewable on the standard of reasonableness (New
Brunswick v Dunsmuir, 2008 SCC 9 at para 51).
[17]
This case involves review of the Officer’s
application of statute and of a judicial test to the particular facts. Thus, it
is distinguishable from the standard of review analysis in Febles v Canada
(Minister of Citizenship and Immigration), 2012 FCA 324 at paragraphs 22-25,
in which the Court of Appeal applied the correctness standard to review a
decision involving the interpretation of a provision of an international
Convention “that should be interpreted as uniformly as
possible”.
V.
Analysis
[18]
Under subsection 35(1)(a) of the Act, a person
is inadmissible to Canada for violating human or international rights if he or
she has committed an act outside Canada that amounts to an offence under
sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, SC
2000, c-24.
[19]
In Ezokola, above, the Supreme Court of
Canada outlined the framework of analysis for assessing complicity in crimes
against humanity under Article 1F(a) of the Refugee Convention, incorporated
into Canadian law by section 98 of the Act, which excludes an individual from
refugee protection when there are serious reasons for considering he or she has
committed an international crime. The Supreme Court explicitly rejected the
concept of “guilt by association”, finding that “individual
criminal responsibility has not been stretched so far as to capture complicity
by mere association or passive acquiescence”. Rather, complicity is
based on an intentional and knowing contribution to a group’s crime or criminal
purpose (Ezokola, at paras 53, 68).
[20]
Though decided in the context of exclusion from
refugee protection, the test for complicity set out in Ezokola equally
applies to inadmissibility under subsection 35(1)(a) of the Act (Kanagendren
v Canada (Minister of Citizenship and Immigration), 2015 FCA 86 at para
21).
[21]
In order to find culpable complicity, there must
be a link between the individual and the crimes or criminal purpose of the
group. This link is established where the Officer has reasonable grounds to
believe that an individual has voluntarily made a significant and knowing
contribution to a group’s crime or criminal purpose (Ezokola, at para
6).
[22]
Accordingly, it is not sufficient for an
individual merely to be associated with a group that committed crimes. As the
Supreme Court noted in Ezokola at paragraph 68, following review of complicity
under international law:
68 In sum, while the various modes of
commission recognized in international criminal law articulate a broad concept
of complicity, individuals will not be held liable for crimes committed by a
group simply because they are associated with that group, or because they
passively acquiesced to the group’s criminal purpose. At a minimum, complicity
under international criminal law requires an individual to knowingly (or, at
the very least, recklessly) contribute in a significant way to the crime or
criminal purpose of a group.
[23]
The six enumerated factors for assessing
complicity are to be applied as follows:
92 When relying on these factors for
guidance, the focus must always remain on the individual’s contribution to the
crime or criminal purpose. Not only are the factors listed above diverse, they
will also have to be applied to diverse circumstances encompassing different
social and historical contexts. […] Thus, the assessment of the factors
developed in our jurisprudence, the decisions of the courts of other countries,
and the international community will necessarily be highly contextual.
Depending on the facts of a particular case, certain factors will go “a long
way” in establishing the requisite elements of complicity. Ultimately, however,
the factors will be weighed with one key purpose in mind: to determine whether
there was a voluntary, significant, and knowing contribution to a crime or
criminal purpose.
Ezokola, at
para 92
[24]
The Applicants submit the Officer erred in applying
the Ezokola factors to this case. They claim the Officer’s finding that
Mr. Jamali’s employment as a police officer with operational duties link him to
crimes against humanity is flawed, as it in effect deems all officers with such
duties inadmissible. This is contrary to the holding in Ezokola that
there must be individual criminal responsibility, not just association or
passive acquiescence. With a force of over 70,000 officers, it is an error to
find that all are deemed to have contributed.
[25]
The Officer accepted both that Mr. Jamali is a
low-ranking officer and that he himself had not committed any crime against
humanity. The Applicants argue it was an error to reject the well-established
principle that rank is positively correlated with knowledge and support of the
organization’s crimes, and to fail to explain why Mr. Jamali’s position as a
low ranking officer increases his odds of being complicit. Mr. Jamali did not
have any effective control over those responsible for crimes or torture.
[26]
Moreover, the Applicants state it was
unreasonable for the Officer to find Mr. Jamali complicit on the basis he had
been aware of crimes against humanity and had removed himself from the scene of
their commission. The Officer misinterpreted Mr. Jamali’s statement that “I have not remained present at the scene of crimes against
humanity”, which the Applicants claim intended to state he had never
perpetrated crimes against humanity. Knowledge of such crimes within a large
and multi-faceted police force does not constitute complicity.
[27]
Finally, as the Sindh Police Force is a
legitimate organization, the Applicants argue it was unreasonable for the Officer
to place weight on the length of Mr. Jamali’s employment as indicative of his complicity.
The evidence before the Officer indicated that Mr. Jamali is a law abiding
citizen, who works for a legitimate police force: he was not linked to any
crimes, and cannot be expected to have left legitimate employment. These
factors should be evaluated as neutral at best.
[28]
Though the Court may have preferred a different
outcome in this case, the foundation of reasonableness review requires that it
pay deference to the Officer’s findings when the reasons provided are
transparent, justified and intelligible, and when the Decision falls within a
range of acceptable outcomes in respect of the law and evidence. For the
following reasons, I find no basis upon which the Court may legitimately
interfere with the Officer’s decision, and I would dismiss the application.
[29]
The issue before the Officer was whether there
were reasonable grounds to believe Mr. Jamali voluntarily made a knowing and
significant contribution to acts of torture alleged to have been committed by
the Sindh Police Force. The “reasonable grounds to
believe” standard, which by virtue of section 33 of the Act is
applicable to inadmissibility findings made pursuant to subsection 35(1)(a), requires
more than mere suspicion but is a lower standard than proof on a balance of
probabilities (Mugesera, above, at para 114).
[30]
The Officer explicitly acknowledged that there
is no evidence to suggest Mr. Jamali himself directly committed crimes against
humanity. However, this does not undermine the Officer’s conclusion there were reasonable
grounds to believe Mr. Jamali contributed to the crimes of the Sindh Police
Force. Complicity arises by contribution, and while there must be a link
between the individual and the criminal purpose of the group, an individual may
be found complicit in international crimes without being present at or
physically contributing to those crimes (Ezokola, at paras 7, 8, 77). The
Officer’s assessment thus considered whether Mr. Jamali’s position in the
police force as an operational officer for an extended period of time provided
those reasonable grounds to support a finding of complicity, pursuant to the
standard set out in Ezokola.
[31]
To be found culpably complicit, Mr. Jamali’s contribution
to the crime or criminal purpose must be (1) voluntary; (2) knowing; and (3)
significant (Ezokola, at paras 86-90).
[32]
I find it was reasonable for the Officer to
conclude that there was both a voluntary and a knowing contribution to the
organization’s crimes or criminal purpose. On the issue of voluntariness, there
was no evidence that Mr. Jamali was forced into employment of the police force,
or that it was obligatory that he remain. With regards to Mr. Jamali’s knowledge
of the crimes against humanity perpetrated by the Sindh Police Force, the
Officer drew an inference from Mr. Jamali’s position and tenure in the
organization, which I find was a reasonable basis upon which the Officer could
conclude Mr. Jamali knew of and was exposed to the ongoing and widespread incidents
of torture.
[33]
The central issue in this case comes down to
whether it was reasonable for the Officer to have found that Mr. Jamali’s
contribution was “significant” on the evidence.
[34]
The Officer appropriately considered the six
factors, and the analysis accords with the Supreme Court’s guidance at
paragraphs 94 to 100 of Ezokola. The analysis is contextual and the determination
as to which factors are most influential is discretionary. The Officer placed
significant weight on the 3rd and 4th factors (Mr. Jamali’s duties, activities
and rank within the organization), finding they illustrated that Mr. Jamali was
aware of and had been exposed to the crimes committed by the Sindh Police and
that he had consciously removed himself from the scene of their commission in
the past.
[35]
However, Mr. Jamali’s association with the Sindh
Police Force and his knowledge and acquiescence towards the group’s activities,
without more, does not amount to complicity. Complicity requires a nexus
between the person’s conduct, and the group’s crimes (Ezokola, at para
8).
[36]
In this case, the Officer considered the link
between the duties and activities of Mr. Jamali, and the crimes perpetrated by
the organization. The Officer noted that Mr. Jamali’s responsibilities during
his ongoing tenure with the Sindh Police, particularly since 2008, were
primarily direct, operational policing work, including interrogations,
investigations, arrests and searches.
[37]
The Officer found that in a large police
organization such as the Sindh Police, it is more likely that the acts of
torture and other crimes against humanity are committed at the lower, direct
policing level. Though the Supreme Court reasoned that “a
high rank or rapid ascent through the ranks of an organization could evidence
strong support of the organization’s criminal purpose” (Ezokola, at
para 97), I find the Officer’s conclusion was reasonable and demonstrates he
took a contextual approach in assessing the factors on the particular facts. In
this case, the Officer’s above conclusion was supported by documentary evidence
indicating that incidents of torture, illegal arrests, violent interrogations
and extrajudicial killings were regularly perpetrated by police officers during
the course of arrests and interrogations of suspects.
[38]
The Officer determined that Mr. Jamali knowingly
made a significant contribution to the crimes of the police force based on the Mr.
Jamali’s tenure and his positions where he held responsibilities of
supervision, and conducted investigations and patrol functions, including
arrest, detention and interrogation for the Sindh Police while serving most of
his time in Hyderabad. I do not find that this conclusion, especially given the
supportive documentary evidence, fell outside the range of reasonable outcomes.
[39]
Particularly compelling support for the
reasonableness of the Officer’s decision is the documentary evidence describing
the torture, illegal detentions, and extrajudicial-killings committed by the
Sindh Police as “routine”, “common” and “widespread
and/or systematic”. Yet another document before the Officer discussing
human rights violations by the police in Sindh province indicates that “[t]he police have institutionalized torture to a point where
it is viewed as the primary method of crime detention. Police torture has
become so commonplace that it has slowly lost the capacity to shock and
disgust”. This is not a case where the abuses are discrete, uncommon and
perpetrated by few, wherein a link for finding individual complicity on these
facts may indeed be more tenuous.
[40]
I disagree with the Applicants that the
Officer’s finding in this case in effect deems all police complicit in the
crimes committed by the Sindh Police Force. The Officer noted it was Mr.
Jamali’s operational and direct role in carrying out arrests,
interrogations and investigations, for twelve years, in a region cited as
conspicuous for high rate incidents of police torture, that was satisfactory to
meet the “reasonable grounds to believe”
standard that Mr. Jamali was complicit in and contributed to the human rights
violations committed by the Sindh Police Force.
[41]
I also do not find the Officer’s interpretation
of Mr. Jamali’s affidavit unreasonable. The Officer read Mr. Jamali’s statement
“I have not remained present at the scene of crimes
against humanity” to be an admission that when incidents were taking
place, Mr. Jamali knew about them, and would remove himself from the scene.
Though Mr. Jamali argues this was an error of law, it involves the Officer’s
interpretation of the evidence and findings of fact – a task entitled to
deference.
[42]
As well, Mr. Jamali’s claim that the voluntary
nature and length of service are neutral factors that cannot support a finding
of complicity, not only contradicts the judgment in Ezokola, but essentially
amounts to a disagreement with the Officer’s weighing of the factors and the
evidence, which is not a reviewable error upon which this Court is entitled to intervene.
[43]
There is also no indication that the Officer
disregarded, misapprehended or failed to consider the positive evidence
presented by Mr. Jamali, including his references, his participation in
community events and human rights projects, and his training regarding gender
sensitivity and gender-based violence. The reasons explicitly find that “[Mr. Jamali’s] training record does not alter his degree of
complicity in the crimes against humanity that were occurring”.
[44]
I do not find that the Officer applied and
considered the factors outlined in Ezokola in a mechanical manner
without proper analysis. On the contrary, the Officer appropriately
concentrated on the Mr. Jamali’s role, and took into account the material
aspects of that role in conjunction with documentary evidence, finding there
was a reasonable basis to conclude Mr. Jamali voluntarily and knowingly
contributed to the crimes committed by the Sindh Police.
[45]
On the evidentiary standard of “reasonable grounds to believe”, and given the
deference owed the Officer’s decision, I find the reasons were transparent,
intelligible and justified, and fell within the range of reasonable outcomes
considering the evidence and the governing law.
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