Docket: IMM-975-16
Citation:
2017 FC 269
Ottawa, Ontario, March 10, 2017
THE CHIEF JUSTICE
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BETWEEN:
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GHAZALA ASIF
KHAN
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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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JUDGMENT AND REASONS
[1]
The Applicant, Mrs. Khan, is a citizen of
Pakistan. Her application for permanent residence in Canada was denied after
her spouse was found to be inadmissible to Canada on the basis that there are
reasonable grounds to believe that he had been complicit in the commission of
crimes against humanity, and that he had personally participated in such crimes
when he was a high-ranking member of Pakistan’s military.
[2]
Mrs. Khan asserts that the decision denying her
application should be set aside on the basis that the reasons provided were not
sufficiently justified, transparent or intelligible.
[3]
I disagree. For the reasons that follow, this
Application will be dismissed.
I.
Background
[4]
In support of her application for permanent
residence in Canada as a member of the investor class, Mrs. Kahn disclosed that
her spouse had been employed with Pakistan’s military between 1976 and 2000,
and that he had risen through the ranks to eventually become a Lieutenant
Colonel.
[5]
In June 2012, Mr. Khan participated in an
interview [the Interview] in relation with his spouse’s application. A summary
of the Interview states that Mr. Khan acknowledged that he had been a member of
the joint Pakistani military and police Field Interrogation Team [FIT] in
Karachi when it was involved in “Operation Clean Up”
in 1992 and 1993; and that he had used interrogation techniques such as
slapping, punching, using stress positions and forcing detainees to look at the
sun, during that period. That summary added that Mr. Khan insisted that those
techniques did not constitute torture because no electricity, water boarding,
heavy beatings or techniques that caused long-term physical damage were used.
[6]
The visa office in London, U.K., informed former
counsel to Mrs. Khan that it did not have a transcript of the Interview. However,
a redacted version of the security advice brief of the Canadian Security Intelligence
Services [CSIS] security advice brief was included at pages 235–239 of the
Certified Tribunal Record [CTR].
[7]
Through counsel, Mr. Khan subsequently clarified
that he had not personally used or witnessed such interrogation techniques,
that he does not personally condone them and that he suspects the police alone
had used them. However, he acknowledged that such techniques would legally constitute
torture (CTR, at 205, 212 and 218).
II.
The Decision Under Review
[8]
The decision under review [the Decision] is
comprised of a form letter, dated January 7, 2016, and computerized notes [Notes]
that were prepared by the Immigration Officer [the Officer] who issued the Decision,
as well as by others who were involved in processing Mrs. Khan’s application. It
is common ground between the parties that the Notes form part of the Decision.
[9]
The letter informed Mrs. Khan that her
application for a permanent resident visa had been rejected on the basis that
there are reasonable grounds to believe that her spouse, Muhammad Asif Khan, is
a member of the inadmissible class of persons described in paragraph 35(1)(a)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The
letter explained that, pursuant to paragraph 42(1)(a) of the IRPA, a foreign
national is inadmissible on grounds of an inadmissible family member if their
accompanying family member or, in prescribed circumstances, their
non-accompanying family member is inadmissible. Given that her spouse is
inadmissible, she too is inadmissible.
[10]
Among other things, the Decision described the
facts relating to Mr. Khan’s military service and the statements that he
allegedly made regarding the interrogation techniques that he used, as
described at paragraph 5 above. The Decision also described the subsequent
clarifications that were provided by Mr. Khan. However, the Officer stated that
those responses did not appear to be sufficient to warrant a reconsideration of
Mr. Khan’s inadmissibility.
[11]
In addition, the Decision referred to open-source
information that reported upon human rights abuses, including torture,
perpetrated by the military in Pakistan. The Decision further stated that Mr.
Khan had been a member of divisions within the army which were responsible for
human rights abuses, including torture. Given the length of Mr. Khan’s military
service, and the fact that it had been voluntary, the Officer concluded that he
would have been complicit in the human rights abuses reported to have been committed
by the military during the time that he was in its service.
III.
Relevant Legislation
[12]
As noted above, paragraph 42(1)(a) of the IRPA
provides that a foreign national, other than a protected person, is
inadmissible on grounds of an inadmissible family member if that person’s
accompanying family member or, in prescribed circumstances, their
non-accompanying family member, is inadmissible.
[13]
Pursuant to paragraph 35(1)(a) of the IRPA, a
permanent resident or foreign national is inadmissible on grounds of violating
human or international rights where that person has committed an act outside
Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes
Against Humanity and War Crimes Act, SC 2000, c 24 [CAHWCA].
[14]
Pursuant to section 33 of the IRPA, the facts
that constitute inadmissibility under sections 34 to 37 include facts arising
from omissions and, unless otherwise provided, include facts for which there
are reasonable grounds to believe that they have occurred, are occurring or may
occur.
[15]
Among other things, subsection 6(1) of the
CAHWCA provides that every person who, either before or after the coming into
force of that provision, commits a crime against humanity is guilty of an
indictable offence. Pursuant to subsection 6(3), a crime against humanity
includes torture.
[16]
Pursuant to subsection 7(1) of the CAHWCA, a
military commander commits an indictable offence if that person, outside
Canada, fails, before or after the coming into force of that section, to
exercise control properly over a person under their effective command, or
control or effective authority and control, and as a result the latter person
commits an offence under section 6. Subsection 7(1) creates an additional
offence where a military commander knows, or is criminally negligent in failing
to know, that the person described immediately above is about to commit or is
committing such an offence. In each case, the offence is not complete unless
the military commander (i) fails to take, as soon as reasonably practicable,
all necessary and reasonable measures within their power to prevent or repress
the commission of the offence, or the further commission of the offence; or
(ii) fails to take, as soon as practicable, all necessary and reasonable
measures within his or her power to submit the matter to the competent
authorities for investigation and prosecution.
[17]
Subsection 7(2) of the CAHWCA establishes similar
offences for a “superior,” who is defined to be “a person in authority, other than a military commander.”
[18]
The full text of the aforementioned provisions
is provided in Appendix 1 to these reasons.
IV.
Issue
[19]
In my view, the only issue raised by this
Application is whether the Decision is reasonable. Contrary to Mrs. Khan’s
assertions, the adequacy of the reasons provided in the Decision is not a
stand-alone basis for setting aside the Decision. Rather, those reasons must be
considered together with the outcome in determining whether the Decision is
reasonable (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, at paras 14 and 22 [Newfoundland
Nurses]).
[20]
Mrs. Khan also asserted that her spouse had been
denied procedural fairness based on the fact that an interpreter was not
present at the Interview. However, at the oral hearing, counsel to Mrs. Khan
conceded that her spouse should have raised this issue at the Interview (Mohammadian v Canada (Minister of Citizenship and
Immigration), 2001 FCA 191; Kazi
v Canada (Minister of Citizenship and Immigration), 2002 FCT 733; Mohamed
v Canada (Citizenship and Immigration), 2014 FC 192).
Accordingly, this is no longer a live issue in this Application.
[21]
In conducting a review on a reasonableness
standard, the Court will assess whether the Decision falls “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law” (Dunsmuir v New
Brunswick, 2008 SCC 9, at para 47 [Dunsmuir]). In performing that
assessment, the Court is required to consider whether the Decision fits
comfortably within the principles of justification, transparency and
intelligibility (Dunsmuir, above, at para 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 59). In that regard, the
Court will assess whether the Decision under review explains why the ultimate
conclusion was reached, and whether that conclusion was within the range of
acceptable outcomes described above (Newfoundland Nurses, above, at para
16).
V.
Analysis
A.
Direct Participation in Crimes Against Humanity
[22]
Mrs. Khan submits that the alleged admission
relied upon by the Officer in concluding that her spouse had directly participated
in torture did not provide a sufficient basis upon which to reach that
conclusion. She maintains that the circumstances in which the admission was
allegedly made give rise to a reasonable doubt as to whether the admission was
in fact made, and that the Officer erred by failing to ensure that there was no
ambiguity with respect to that admission.
[23]
In my view, the Officer’s conclusion that there
were reasonable grounds to believe that Mr. Khan had directly participated in
acts that amount to torture, and that such acts constituted offences referred
to in sections 4 to 7 of the CAHWCA, was not unreasonable.
[24]
The standard of “reasonable
grounds to believe” that is set forth in section 33 of the IRPA
contemplates a lower evidentiary threshold than what is contemplated by the
standards of “balance of probabilities” and “serious reasons for considering” (Ezokola v Canada
(Citizenship and Immigration), 2013 SCC 40, at para 101 [Ezokola]).
Stated differently, the standard of proof lies somewhere between mere suspicion
and the latter standards. In brief, reasonable grounds will exist where there
is an objective basis for the belief which is based on compelling and credible
information (Mugesera v Canada (Minister
of Citizenship and Immigration), 2005 SCC 40, at para 114).
[25]
In the Decision, the Officer noted that Mr.
Khan’s denial that he had ever personally participated in, controlled or
condoned torture was contradictory to what he stated in the Interview. The
Officer acknowledged that Mr. Khan insisted that he did not consider his acts
to have amounted to torture and that he now denies having engaged in such acts
altogether. However, the Officer concluded that such statements were not
sufficient to warrant a reconsideration of the preliminary conclusion conveyed
to Mrs. Khan in May 2015 (CTR, at 198). That preliminary conclusion was that
Mr. Khan appeared to be inadmissible pursuant to paragraph 35(1)(a) of the
IRPA, because he had acknowledged that, as a member of the Pakistani military,
he had committed acts that constitute offences referred to in sections 4 to 7
of the CAHWCA.
[26]
In my view, the conclusion that there were
reasonable grounds to believe that Mr. Khan had directly participated in
torture and had therefore committed acts that constitute offences under the
CAHWCA referred to immediately above, was not unreasonable.
[27]
In brief, the admission given by Mr. Khan during
the Interview was both compelling and credible. This is because of the details that
he provided, the fact that his disclosure of those details constituted
admissions against his interest, and the fact that he voluntarily contrasted
the acts that he described with more egregious acts that he mistakenly thought
were required to constitute torture. The information provided by Mr. Khan
during the Interview had a “ring of truth” to
it.
[28]
In the absence of any evidence of bad faith on
the part of the senior member of CSIS who prepared the security advice brief, there
is no reason to doubt the veracity of that brief. In my view, that brief is not
ambiguous at all. It very clearly states that Mr. Khan acknowledged “that he and other FIT members would slap, punch, use
stress positions and force detainees to look at the sun to elicit confessions”;
and that “Khan stated that this was not torture because
no electricity, water boarding, heavy beatings or techniques that caused
long-term physical damage were used.” (CTR, at 237, emphasis added.)
[29]
In my view, the credibility of this account is
enhanced by virtue of the additional detail provided by Mr. Khan, to the effect
that “the FIT would turn over
the detainees to the police once they confessed or declared not involved in
[sic] or knowledgeable of terrorist activities by FIT” (emphasis added). Moreover, that additional detail made it very
clear that the interrogation techniques in question were conducted by the FIT,
rather than by the police, as now asserted by Mrs. Khan and her counsel.
[30]
It was reasonably open to the Officer to
consider the initial statements made by Mr. Khan to be more credible than the
subsequent disavowal or clarification that was provided by his spouse and her
counsel. This is because the initial statements were made at a time when Mr.
Khan believed that the interrogation techniques that he described having
personally used did not amount to “torture,” as
contemplated by the CAHWCA. By contrast, the disavowal or clarification was
made only after it had become apparent that his earlier statements might render
both him and his spouse inadmissible to Canada. Moreover, that disavowal or
clarification was only made by Mrs. Khan and her counsel, as opposed to by Mr.
Khan in an affidavit.
[31]
In summary, the evidence relied upon by the
Officer to conclude that there were reasonable grounds to believe that Mr. Khan
had directly committed acts of torture while he was a member of the FIT, and
that he had therefore committed crimes set forth in the CAHWCA, was objective,
compelling and credible. The conclusion reached by the Officer on the basis of
that evidence was within the range of acceptable outcomes which are defensible
in respect of the facts and the law.
[32]
Mrs. Khan’s assertion that the evidence gives
rise to a reasonable doubt as to whether her spouse committed the acts of
torture described in the Decision confuses the criminal standard of proof
(beyond a reasonable doubt) with the standard of proof that the Officer was
required to apply (reasonable grounds to believe). Even if the evidence relied
upon by the Officer left open a reasonable doubt as to whether Mr. Khan had in
fact committed the acts of torture described in the Decision, that would not
preclude, or be inconsistent with, the conclusion that there were reasonable
grounds to believe that he had committed those acts.
B.
Complicity in Crimes Against Humanity
[33]
Mrs. Khan submits that the Officer’s conclusion
that her spouse was complicit in torture, and therefore in crimes
against humanity, was not appropriately justified, transparent or intelligible.
In this regard, she asserts that the Decision did not describe which divisions
of Pakistan’s military had engaged in acts of torture, and that it did not
address the link between her spouse and those divisions and acts.
[34]
I disagree.
[35]
To establish complicity in crimes against
humanity, it is necessary to establish that an individual “has voluntarily made a significant and knowing contribution”
to the commission of such crimes (Ezokola, above, at para 84; Talpur
v Canada (Citizenship and Immigration), 2016 FC 822, at para 21; see also Kanagendren
v Canada (Citizenship and Immigration), 2015 FCA 86, at para 21).
[36]
In assessing whether an individual has made such
a contribution to such crimes committed by an organization, consideration
should be given to the following factors (Ezokola, above, at para 91):
(i) the size
and nature of the organization;
(ii) the part
of the organization with which the individual was most directly concerned;
(iii) the individual’s
duties and activities within the organization;
(iv) the
individual’s position or rank in the organization;
(v) the length
of time the individual was in the organization, particularly after acquiring
knowledge of the group’s crime or criminal purpose; and
(vi) the method
by which the individual was recruited and his or her opportunity to leave the
organization.
[37]
I will address each of these factors below. For
convenience, I have combined my discussion of the third and fourth factors.
(1)
Size and nature of the organization
[38]
With respect to this factor, the Officer
appropriately recognized that the size and nature of Pakistan’s military is
such that many who have served with it may not have been directly responsible
or complicit in the crimes against humanity that it is reported to have
committed.
(2)
The part of the organization in which Mr. Khan
was most directly concerned
[39]
Regarding the part of the military in which Mr.
Khan was most directly concerned, the Officer did not explicitly mention the
FIT or any other groups within the military. The Officer simply mentioned being
“satisfied that [Mr. Khan] was a member of divisions
within the army which were responsible for human rights abuses, including
torture” (CTR, at 198).
[40]
In the particular circumstances of this case,
the Officer was not required to specifically refer to the FIT or to the other
groups in the military in which Mr. Khan had worked. That information had been provided
by Mrs. Khan, her counsel and Mr. Khan, either as part of the initial
application, in the Interview, or in subsequent correspondence (CTR, at 43–44, 62,
212, 236). For example, during the Interview, Mr. Khan disclosed that he had
been assigned to the FIT between 1992 and 1993, after having spent several
years with Pakistan’s Military Intelligence [MI] group. Moreover, in the
Additional Family Information form that Mrs. Khan provided in support of her
application, it was indicated that Mr. Khan had been a Lieutenant Colonel with
the Pakistan Rangers division in the Sindh province, in which Karachi is
located. As discussed below, there was evidence before the Officer indicating that
the FIT, the MI group and the Pakistan Rangers division had committed both
torture and other human rights abuses, including in Karachi during the period
when Mr. Khan was stationed there. There is nothing in the CTR to suggest that
Mr. Khan’s involvement with these parts of the military was a matter of dispute
between the parties. Rather, the issues were whether those parts of the
military had been involved in human rights abuses and torture, and if so,
whether Mr. Khan had been complicit in those crimes.
(3)
Mr. Khan’s duties, activities and rank within the military
[41]
The Decision noted that Mr. Khan had risen to
the rank of Lieutenant Colonel over the course of a long and successful career
in the military.
[42]
It would have been preferable for the Decision to
have specifically addressed some of the other positions of leadership that Mr.
Khan had held in the military, together with some of his duties and
responsibilities. However, once again, given the particular facts of this case,
it was not essential that these matters be addressed in the Decision. This is because
they were all summarized in the materials that were provided in support of Mrs.
Khan’s application for a permanent resident visa. In these circumstances, and
considering that the Decision referred to Mr. Khan’s “long
and successful” career, it is entirely appropriate for the Court to
consider the information in the CTR for the purposes of assessing the
reasonableness of the Decision (Newfoundland Nurses, above, at para 15).
[43]
The CTR reflects that there was no dispute
between the parties with respect to any of the ranks held by Mr. Khan, his
duties, or his activities (other than as they may have related to human rights
abuses and torture). The Details of Military Service that appear to have been
provided in support of his spouse’s application state that, as Lieutenant
Colonel between 1997 and 2000, Mr. Khan’s duties included “to ensure/assist local police in maintaining law and order.”
That same document also indicates that from June 1994 to September 1997, he was
a “Commanding Officer,” with the ranks of Lieutenant
Colonel or Major; and that he was a Major, with varying responsibilities, over
a period of several years dating back to the late 1980s. The document further
indicates that, prior to that point in time, Mr. Khan was a Captain starting in
March 1982. In those various capacities, his duties were described as including
keeping his unit fit for any operational or administrative tasks, assisting the
Commander in the performance of his duties and assisting the Commander to maintain
law and order (CTR, at 42–44).
[44]
With respect to the involvement of the FIT in
human rights abuses and torture, the Decision observed that Mr. Khan’s denial
of ever having participated in the activities that were described in e-mail
correspondence with Mrs. Khan’s former representative (CTR, at 209) is
contradictory to what he stated in the Interview. As noted at paragraph 28
above, Mr. Khan stated in the Interview that he and other FIT members
engaged in those activities, which he now disavows but acknowledges would
constitute torture (CTR, at 212). For the reasons discussed at paragraphs 27
and 29 above, it was reasonably open to the Officer to find that statement made
during the Interview to be more credible than Mr. Khan’s subsequent disavowal
or clarification, with respect to both his and the FIT’s involvement in
torture.
[45]
CSIS’s redacted security advice brief also states
that Mr. Khan revealed that he had been involved with the MI group within the
military. According to a report by the Asian Human Rights Commission that was
cited in the report of the Canadian Border Services Agency [CBSA] to the London
visa office on Mr. Khan, both the MI group and the Pakistan Rangers division
are among the main agencies that keep persons incommunicado and torture them to
confess their involvement in anti-state activities (CTR, at 228; Respondent’s
Record, at 39–40).
[46]
In recommending that there are reasonable
grounds to believe that Mr. Khan is inadmissible to Canada pursuant to
paragraph 35(1)(a) of the IRPA, the CBSA report cited additional third party
sources that reported on torture and other human rights violations perpetrated
by the MI group and by the Pakistan Army, including during the 1992–1994 “Operation Clean Up” initiative, in which Mr. Khan
admitted having been involved in Karachi.
[47]
For example, the CBSA report quoted from the
United States Department of State Country Report on Human Rights Practices for
1993, which noted that “Operation Clean Up” had
sparked credible charges of human rights violations by the army units involved
and of selective targeting of certain political elements in Pakistan’s Sindh
province. The CBSA also quoted a report from Amnesty International, published
in 1993, which described torture by the police, the paramilitary and the military
as having been endemic, widespread and systematic in Pakistan in 1992 and 1993.
[48]
In my view, the above-mentioned evidence of the
involvement of FIT, the MI group and the Pakistan Rangers in torture was objective,
compelling and credible. It was not unreasonable for the Officer to have relied
on that information, in concluding that those parts of Pakistan’s military had
been engaged in torture.
[49]
Based on my review of the CTR, I am satisfied
that that the above information was what the Decision was referring to when it
stated that “[o]pen source information has reported
that human rights abuses, including torture, have been perpetrated by the
military in Pakistan,” and that Mr. Khan had been “a member of divisions within the army which were responsible
for human rights abuses, including torture.”
(4)
The length of time that Mr. Khan was with the
military, particularly after acquiring knowledge of the military’s crimes
[50]
With respect to this factor, the Decision simply
noted that Mr. Khan had served in the military from 1976 to 2000.
(5)
The method by which Mr. Khan was recruited and
his opportunity to leave the military
[51]
Insofar as this final factor is concerned, the
Decision simply stated that “the army appears to have
been [Mr. Khan’s] chosen career, which has been both long and successful.”
It has not been suggested on behalf of Mr. Khan that any portion of his career
with the military was not voluntary on his part.
C.
Summary
[52]
Having regard to the foregoing, I am satisfied
that the conclusion reached by the Officer with respect to Mr. Khan’s
complicity in human rights abuses, including torture, was not unreasonable.
That conclusion fell within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law, particularly when regard is had
to the information in the CTR to which the Decision alluded.
[53]
Considering the information that was provided by
Mrs. Khan, her counsel and Mr. Khan, and that was not in dispute between them
and the Officer, the Decision as a whole fit comfortably
within the principles of justification, transparency and intelligibility.
[54]
In brief, the Decision explicitly or implicitly
addressed the appropriate factors in explaining how the ultimate conclusion was
reached, including the parts of the military in which Mr. Khan had been
employed, the human rights abuses and torture perpetrated by those parts of the
organization, the very senior nature of the positions held by Mr. Khan, the
long period of time during which he served with the military, and the voluntary
nature of that service. The findings described in the Decision were supported
by credible evidence that was directly or indirectly provided by Mr. Khan, as
well as by credible and objective third party sources.
[55]
As noted in Ezokola, above, at para 97, “[a] high-ranking individual in an organization may be more
likely to have knowledge of that organization’s crime or criminal purpose”
and “may have effective control over those directly
responsible for criminal acts.”
[56]
Moreover, “[i]t
may be easier to establish complicity where an individual has been with the
organization for a longer period of time” because this “would increase the chance that the individual had knowledge
of the organization’s crime or criminal purpose” (Ezokola, above,
at para 98).
[57]
Considered as a whole, the evidence mentioned
and alluded to in the Decision provided a compelling basis for the conclusion
that there were reasonable grounds to believe that Mr. Khan had been complicit
in the torture that was perpetrated by the FIT, MI and Pakistan Rangers groups
within the military in which he had held senior positions. In essence, that
evidence established that Mr. Khan had voluntarily made a significant and
knowing contribution to the commission of one or more crimes described in
sections 4 to 7 of the CAHWCA. In turn, that implicit finding provided the
basis for the ultimate conclusion that Mr. Khan is inadmissible to Canada
pursuant to paragraph 35(1)(a) of the IRPA, and that therefore Mrs. Khan is
inadmissible pursuant to paragraph 42(1)(a).
VI.
Conclusion
[58]
For the reasons set forth above, the conclusions
that there were reasonable grounds to believe that Mr. Khan had been both
complicit in, and personally involved in, acts of torture, and therefore in
crimes set forth in sections 4 to 7 of the CAHWCA, were not unreasonable.
[59]
Accordingly, this Application will be dismissed.
[60]
Given that no serious question of general
importance has been raised in this proceeding, there is no question for
certification.
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