Date: 20060320
Docket: IMM-5312-05
Citation: 2006 FC 362
Ottawa, Ontario, the 20th day of March 2006
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
SAMSHER
SINGH GHOTARA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
panel) dated July 13, 2005. The panel determined that the applicant was not a
Convention refugee or a person in need of protection within the meanings of
subparagraphs 1F(a) and 1F(c) of Article 1 of the Convention.
ISSUE
[2]
Did the
panel make an error warranting intervention by this Court?
[3]
For the
reasons that follow, the answer to this question is in the negative, and this
application for judicial review will be dismissed.
FACTUAL BACKGROUND
[4]
The
applicant is a citizen of India. He was born on October 26, 1957, in Chhat Bir,
in the state of Punjab.
[5]
The
applicant was a farmer before joining the Indian armed forces from 1976 to
1991. In 1992, he resigned from the army to work for the police force in the
city of Chandigarh until 2004. From 2001 to 2004, the applicant was a member of
the “CIA-START” anti-terrorist unit.
[6]
In July
2001, a suspect who was a member of the “International Sikh Youth Federation”
died while being detained and tortured by the applicant’s colleagues.
[7]
Following
this event, the applicant and some of his colleagues started receiving death
threats. The applicant received the first threatening letter in February 2002.
[8]
In
November 2003, unknown persons went to the applicant’s residence while he was
away and told his children that they would kill their father. The applicant
then sent his children and wife to live at his in-laws and avoided staying in
his house as much as possible.
[9]
In January
2004, he received a second threatening letter by mail. He then decided to
resign and leave India, believing that he could not be safe anywhere in that
country.
[10]
The
applicant travelled with a false passport, which he destroyed on the aircraft,
and arrived in Canada on August 5, 2004. He immediately claimed refugee
protection.
IMPUGNED DECISION
[11]
In its
reasons, the panel relied on Gonzalez v. Canada (Minister of Employment and
Immigration), [1994] 3 F.C. 646 (C.A.), determining that it was not
necessary to rule on the merits of the applicant’s claim for refugee protection
before deciding if there was a possible exclusion under Article 1 of the
Convention.
[12]
After
noting that the respondent had the burden of proving there were serious reasons
for considering that the applicant had committed a crime against humanity, the
panel examined the question of a possibility of exclusion by reason of the
applicant’s participation in crimes against humanity.
[13]
To define
the legal framework of its analysis, the panel cited the following decisions: Ramirez
v. Canada (Minister of Citizenship and Immigration), [1992] 2 F.C. 306
(C.A.), Moreno v. Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 298 (C.A.) and Bazargan v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 1209 (C.A.) (QL).
[14]
The
panel’s final determination relied on Penate v. Canada (Minister of
Employment and Immigration), [1994] 2 F.C. 79 (T.D.) and Gutierrez v.
Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1494
(T.D.) (QL), in which it was held that a refugee protection claimant is
excluded for complicity under Article 1 of the Convention if he was part of a
group which committed a crime against humanity, had knowledge of the group’s
activities, and did not disengage himself from the group when he had a chance
to do so.
[15]
The panel
then analyzed the documentary and testimonial evidence before concluding that
the applicant had been complicit in crimes against humanity. This determination
was based on the reports mentioning the brutality demonstrated by the police
forces in India and their use of torture. The applicant’s testimony was also to
the effect that he had voluntarily joined the police force for economic
reasons, had brought arrested persons to the police station knowing that they
would be tortured, and was able to describe in detail the methods of torture
used. Although he never directly tortured inmates, the applicant was well aware
of the brutal practices the police used against arrested citizens. He could
have left his job but he said that there was no other work and that he could
not earn the same income from his farm as he could in the police.
[16]
The panel
came to the conclusion that the applicant was excluded under subparagraphs 1F(a)
and 1F(c) because of his complicity in the crimes committed by the
Indian police forces.
ANALYSIS
[17]
Section 98
of the Act reads as follows:
|
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.
|
[18]
Subparagraphs
(a), (b) and (c) of section F of Article 1 of the
Convention read as follows:
|
F.
The provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
(a)
he has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes;
(b)
he has committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee;
(c)
he has been guilty of acts contrary to the purposes and principles of the
United Nations.
|
F.
Les dispositions de cette Convention ne seront pas applicables aux personnes
dont on aura des raisons sérieuses de penser :
a) Qu’elles ont commis un
crime contre la paix, un crime de guerre ou un crime contre l’humanité, au
sens des instruments internationaux élaborés pour prévoir des dispositions
relatives à ces crimes;
b) Qu’elles ont commis un
crime grave de droit commun en dehors du pays d’accueil avant d’y être
admises comme réfugiés;
c) Qu’elles se sont rendues
coupables d’agissements contraires aux buts et aux principes des Nations
Unies.
|
[19]
The
standard of review applicable to questions of law is that of correctness (Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[20]
The
conclusions reached by the panel on pure questions of fact are part of its
expertise and specialized role, and this Court should only intervene if there
was a patently unreasonable error (Shrestha v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 887, [2002] F.C.J. No. 1154
(T.D.) (QL), Harb v. Canada (Minister of Citizenship and Immigration),
2003 FCA 39, [2003] F.C.J. no. 108 (C.A.) (QL)).
[21]
Finally,
the panel’s conclusion concerning the applicant’s participation in torture
committed by Indian police forces and his exclusion under Article 1 of the
Convention is a question of mixed law and fact. The applicable standard of
review is reasonableness simpliciter (Harb, supra, Salgado v.
Canada (Minister of Citizenship and Immigration), 2006 F.C. 1, [2006]
F.C.J. No. 11 (T.D.) (QL)).
[22]
In any
event, even if I did apply the most stringent standard to all the conclusions
reached by the panel in this case, I am of the opinion that the intervention of
this Court would not be warranted against any of them.
[23]
The
applicant alleged that the panel rendered its decision on the basis of the
documentary evidence in exhibits M-2, M-3 and M-6 to determine that the Indian
police committed crimes against humanity, while other documents showed that
these activities had ceased during the relevant years.
[24]
The panel
began by noting the legal principles connected with its analysis of the
applicable law regarding exclusion for complicity in crimes against humanity. A
reading of the reasons given by the panel clearly shows that it conducted a
thorough analysis of the applicant’s participation in the activities of the
Indian police, in compliance with the principles mentioned by
Mr. Justice Andrew McKay in Gutierrez, above:
Essentially then, three prerequisites
must be established in order to provide complicity in the commission of an
international offence: (1) membership in an organization which committed
international offences as a continuous and regular part of its operation, (2)
personal and knowing participation, and (3) failure to disassociate from the
organization at the earliest safe opportunity.
[25]
The
documentary and testimonial evidence which was before the panel showed that the
Indian police forces used torture against detained citizens, that the applicant
was aware of this, as he had seen it himself, and that he only disassociated
himself when he came to fear reprisals from the International Sikh Youth
Federation, and not because he objected to police practices.
[26]
The Court
is of the opinion that the documentary evidence supports the panel’s
conclusions. The panel may choose the documents it considers most important.
The decisions of the Immigration and Refugee Board cited by counsel for the
applicant to refute the panel’s conclusions concerning the brutal activities of
the Indian police force are less relevant, considering the applicant’s own
testimony.
[27]
Accordingly,
I cannot see any error in the panel’s reasons and conclusions warranting the
intervention of this Court.
[28]
The
parties decided not to submit any questions to be certified, and the file does
not contain any.
ORDER
THE COURT ORDERS that this application for judicial
review be dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Michael
Palles
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