Date: 19980401
Docket: IMM-1371-97
BETWEEN:
SEYED HASSAN SHAKARABI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (Convention Refugee Determination Division) [hereinafter the Board] dated March 13, 1997. The Board found that the claimant was not a Convention Refugee because he was excluded on the basis of Article 1F(a) of the United Nations Convention Relating to the Status of Refugees.
FACTS
[2] The applicant is an 80 year old citizen of Iran. During his military service in the late 1930s, the applicant's commander was a man named Nassiri who became head of the Shah's secret police, the SAVAK, when it formed in 1955. Nassiri asked the applicant to join the SAVAK but the applicant wanted to remain with his real estate business. However, the applicant volunteered to be an informer and did so for twenty years.
[3] When Khomeini came to power, the applicant was imprisoned and tortured for ten years. He was released in 1989 and remained in Iran for five years while being subjected to harassment. In 1991, he was denied an exit visa on the basis that he was forbidden to leave Iran. In 1992, the applicant and his wife received a visa only after he pledged some property as surety. Upon return to Iran, the land was confiscated.
[4] In 1994, the applicant and his wife received a visitor's visa to Canada but were denied an exit visa. The applicant's son bribed a visa officer to arrange the exit visa which allowed the applicant and his wife to leave Iran. After they had left, the officer whom the son had bribed was caught and the son's house was raided. The applicant's son told the officer that the applicant bribed the officer. The applicant's daughter-in-law called the applicant and his wife and warned them not to come back to Iran. Upon release from the authorities, the son fled to Canada. The applicant, his wife and his son applied for Convention refugee status.
[5] The Board found that the applicant's wife and son were Convention refugees but the applicant was denied this status on the basis of Article 1F(a) of the United Nations Convention Relating to the Status of Refugees. The Board found that the SAVAK had engaged in crimes against humanity since it had engaged in widespread human rights abuses and had wide powers of investigation and arrest which were not subject to any controls by the courts.
[6] At the hearing, the applicant stated that he reported people to the SAVAK whom he believed were involved in corruption and wrongdoing. The applicant remarked that he was never present when the SAVAK interrogated these people. However, the Board found his evidence to be contradictory when asked if he was aware that the SAVAK tortured people during investigations. At various times, he said that he knew people were tortured, but other times he said he was not aware of torture. At one point, the applicant asked rhetorically, why should he be concerned about those he informed on and he repeated throughout his testimony that it was not his business to know what happened to these people. The Board concluded that the applicant was a knowing participant in the actions of the SAVAK.
RELEVANT STATUTORY PROVISIONS
[7] Article 1F(a) of the Schedule to the Immigration Act reads:
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering: |
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| (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. |
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SUBMISSIONS
1. The Applicant's Submissions
[8] The applicant submits that in order for Article 1F(a) to apply, two components must be proven. The first component is that a war crime or a crime against peace or humanity must have occurred. The second component is that the crime must be defined as such in the international instruments. The applicant submits that in order for the provision to apply, an international instrument must be identified and found to have been engaged by the acts committed. Given that the Board made no such finding, the applicant submits that this omission amounts to an error of law.
[9] The applicant further submits that in failing to identify an international instrument, the Board failed to define what constitutes a crime against humanity and why the activities of the SAVAK should be considered as such. It is argued that in the absence of express reference to the instruments, the reviewing court is unable to determine whether the standard used by the panel is correct. It is submitted that this omission constitutes an error of law.
[10] It is also submitted that the omission to include the international instrument is a breach of the Board's requirement to render complete reasons as defined in section 69.1(11) of the Immigration Act.
[11] The applicant, by not commenting on the above submission made in his written application at the hearing before me, obviously abandoned this argument.
[12] The applicant's second main submission is that the Board erred in characterizing the SAVAK as an organization principally directed to a limited, brutal purpose. It is submitted that the documentary evidence indicates that the primary purpose of the organization was domestic and foreign security and that the SAVAK engaged in a wide range of activities in this regard. The applicant contends that the Board confused purpose with the means for attaining that purpose because although the means may have constituted serious human rights violations, the purpose of the organization remained legitimate.
[13] The applicant's final submission is that he did not have personal and knowing participation in crimes against humanity. The applicant argues that he was an informer to the SAVAK due to his personal relationship with Nassiri. The applicant stated that he informed on those guilty (according to his interpretation of this word) of corruption and, on one occasion, a potential assassin of the Shah. The applicant stated that he was not paid by the SAVAK, was not their employee and that he informed on people breaking the law out of a sense of duty to his country. The applicant states that there was no evidence of informing on political opponents other than the potential assassin.
[14] The applicant states that, although his knowledge of the SAVAK's techniques appeared confused and contradictory, the Board should have considered the applicant's age in assessing his testimony. The applicant also submits that, when faced with two pieces of contradictory evidence from the claimant, the Board should accept the testimony in the applicant's favour for this would accord with the principle of benefit of the doubt.
2. The Respondent's Submissions
[15] The respondent points to the decision of the Federal Court of Appeal in Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 where the court set out certain principles to help determine when a claimant should be excluded under Article 1F(a). The respondent's argument appears to be that if the Board's decision is made in accordance with these principles, then the decision is proper.
[16] In addition, the respondent submits that the applicant had personal and knowing participation in the acts of the SAVAK. The respondent argues that the applicant was a willing volunteer for the SAVAK and a personal friend with General Nassiri. There was no evidence before the Board that the applicant protested the crimes, or tried to stop their commission or attempted to withdraw. There was further evidence that the applicant knew that crimes against humanity by the SAVAK were commonplace. Therefore, the respondent submits that the applicant was a complice of the SAVAK because he indirectly had personal and knowing participation in their acts even though he was not a formal member of the SAVAK. According to the respondent, it was reasonably open to the Board to conclude that the applicant met the test set out in Article 1F(a).
[17] The respondent also disputes the applicant's argument that the Board confused the SAVAK's purpose with the means for attaining that purpose because although the means may have constituted serious human rights violations, the purpose of the organization remained legitimate. The respondent submits that this logic is akin to the discredited notion of the ends justifying the means and omitting the fact that the means shape the ends.
DISCUSSION
[18] The applicant cites the following statement from the UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status, dated January 1988, concerning article 1F:
| 150. In mentioning crimes against peace, war crimes or crimes against humanity, the Convention refers generally to "international instruments drawn up to make provision in respect of such crimes". There are a considerable number of such instruments dating from the end of the Second World War up to the present time. All of them contain definitions of what constitute "crimes against peace, war crimes and crimes against humanity." The most comprehensive definition will be found in the 1945 London Agreement and Charter of the International Military Tribunal. |
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[19] I am satisfied the courts generally cite the 1945 London Agreement and Charter of the International Military Tribunal [hereinafter the Charter of the IMT] for the definition of crimes against humanity, although other definitions are used separately or in concert with the Charter of the IMT. However, the courts also go beyond the international instruments and have cited additional legal requirements. For example, in Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433 (F.C.A.) at 442, Linden J. states under the heading "Crimes Against Humanity":
| There are certain additional legal requirements commonly accepted as part of the definition of crimes against humanity in the international sphere. Crimes against humanity must generally be committed in a wide-spread, systematic fashion (see, for example, the Flick Trial (trial of Friedrich Flick and five others), United States Military Tribunal at Nuremberg, Law Reports of Trials of War Criminals, Vol. IX, page 1, and the Justice Trial (trial of Joseph Alstötter and others), United States Military Tribunal at Nuremberg, Law Reports of Trials of War Criminals, Vol. VI, page 1, at pages 37, 47). |
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| Another historic requirement of a crime against humanity has been that it be committed against a country's own nationals. This is a feature that helped to distinguish a crime against humanity from a war crime in the past. (See the Flick Trial, supra, as well as the Justice Trial, supra.) |
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[20] The courts often consider statements by academics, commentators and various domestic and international courts and tribunals in order to arrive at a definition of crimes against humanity. These statements help to define further the bare bones of the definition provided in such international instruments as the Charter of the IMT. Through its decisions, the Federal Court interprets these statements in accordance with the international instruments in order to provide a definition for all interested parties. Thus, the real issue is whether the acts which the Board identified are crimes against humanity as discussed in the court's jurisprudence.
[21] The applicant's main submission is that the Board erred in characterizing the SAVAK as an organization principally directed to a limited, brutal purpose because, although SAVAK engaged in human rights violations, its alleged primary purpose was domestic and foreign security. After examining the anecdotal and statistical evidence, it is my opinion that the Board was entitled to conclude that the primary purpose of the SAVAK was not domestic and foreign security. As an example of the torturous acts of the SAVAK, the Board cited the following from the International Commission of Jurists [see Dilip Hiro, Iran Under the Ayatollahs at 21 as found as an attachment to Response to Information Request IRN3784, January 16, 1990]:
| The ICJ interviewed over 3000 former prisoners and found that: |
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| ...90 per cent of them had been beaten, 80 per cent whipped with rods or cables, more than half burned with cigarettes, and up to 40 per cent scarred with hot rods. |
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It is difficult to justify statements of such inhumane treatment as being done for the primary purpose of domestic and foreign security.
[22] I find that if I were to accept the applicant's argument it could be used to justify the worst type of human rights abuses. One could argue that the purpose of many oppressive state organizations is domestic and foreign security, but that should not mean that significant human rights violations should occur without impunity. That would be counter to the principles of Article 1F(a) of the United Nations Convention Relating to the Status of Refugees. Thus, I have no difficulty denying this ground of appeal.
[23] The applicant's final submission is that he did not have personal and knowing participation in crimes against humanity committed by the SAVAK. The applicant notes that he was an unpaid informer for the SAVAK and only became an informer due to his personal relationship with General Nassiri. The applicant also submits that, with one exception, he only informed on corrupt citizens and not political opponents to the Shah.
[24] It is clear from the decision in Bazargan v. Canada (M.C.I.) (1996), 205 N.R. 282 (F.C.A.) that personal and knowing participation in crimes against humanity does not require formal membership in an organization engaged in those activities. Therefore, the applicant cannot exonerate himself on that ground.
[25] The Board found that the applicant was a complice in crimes against humanity because he was an informant for 20 years, he had a personal relationship with General Nassiri and the general knowledge by Iranian citizens about the SAVAK's activities. Indeed, by reading the transcript, one can conclude that the applicant knew that individuals whom he informed on to the SAVAK could suffer serious human rights violations, but he felt it was for the good of his country. I cannot find that the Board erred by holding that the applicant shared a common purpose with the SAVAK to eliminate opposition to the Shah. The Board also did not err in concluding that the applicant had knowledge of the SAVAK's activities. It is not reasonable to believe that a regular informant of the SAVAK for 20 years who had a personal relationship with its leader could be so unaware of the SAVAK's operations. It is much too simple to say that one is unaware of barbaric actions of an organization in order to try to distance oneself from these barbaric actions. If, as in the present case, an individual lives and works in a country where persons around him are disappearing and where one hears of persons arrested and tortured, it appears to me, to be totally unbelievable that one would not have knowledge of what is taking place. I believe that the Board came to the correct conclusion on the evidence before it.
CONCLUSION
[26] This application for judicial review is denied.
[27] Neither party has submitted a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
April 1, 1998
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