Mehmoud v. Canada (Minister of Citizenship and Immigration), docket IMM-1734-97

Date: 19980707

Docket: IMM-1734-97

BETWEEN:

     SULTAN MEHMOUD,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

MULDOON, J.

[1]      The applicant seeks certiorari and mandamus in regard to the decision (U94-03333) of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board dated April 3,1997, in which the CRDD determined "that there are serious reasons for considering that the [applicant] committed an offence under Article 1.F.(a) of the Schedule [to the Immigration Act] and is, therefore, excluded from the protection afforded by recognition as a Convention refugee". (Applicant's record - AR - p. 18.)

[2]      The schedule is referred to in subsection 2(1) of the Act, being part of the Convention to which Canada is a signatory. Its pertinent parts run as follows:

Schedule - Sections E and F of Article 1 of the United Nations Convention Relating to the Status of Refugees

E. * * *

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.

[3]      The CRDD's findings here deserve to be recited so that each side's position can be clarified beyond doubt. The pertinent passages run as follows:

Basis of Claim

The male claimant [the applicant] alleges that if he were to return to Pakistan he will be persecuted as a result of his involvement in a religious/political organization known as the Sepah-e-Sahaba of Pakistan (SSP). The male claimant fears persecution by both the government and political organizations opposed to the SSP. The male claimant's wife and child base their claims to Convention refugee status on the male claimant.

Issues in the Claim

The following issues were identified as relevant to the claims of the male claimant, he wife and his child:

1.      identity of the three claimants;

2.      well-foundedness of the fear of persecution for each of the male claimant, his wife and child; and

3.      whether there are serious reasons for considering that the male claimant participated in activities which would bring his activities within the scope of the Exclusion Clauses.

Previously, the claimants made claims to Convention refugee status in Canada. The claimants entered Canada in 1990 and made claims to Convention refuge status. At that time, claims were referred to a hearing before an adjudicator and a member of the Immigration and Refugee Board to determine whether their claims to Convention refugee status had a credible basis. The claimants were determined not to have a credible basis to their claims and they were ordered to leave Canada.

Following this determination, the claimants were removed from Canada and returned to Pakistan in March 1992. In November 1993, the claimants returned to Canada and made a second refugee claim. There was no attempt on the part of the claimants to disguise their previous claims to Convention refugee status.

* * *

2.      Well-foundedness of the fear of persecution

The claimant alleges that if he is returned to Pakistan he will be persecuted as a result of his activities with the SSP and the Muslim League Party. The male claimant's Personal Information Form summarizes a number of incidents which he alleges took place including events occurring after his deportation from Canada to Pakistan. A copy of this narrative is attached to these Reasons as Schedule A. In oral testimony, over several sittings, the male claimant gave further details about the events which caused him, his wife and child to flee Pakistan on two occasions. There were a number of inconsistencies in the claimant's testimony concerning some of these events. * * *

* * *

The male claimant's testimony concerning the events which occurred in 1992-1993 were consistent and uncontradicted in oral testimony. These events include a drive-by shooting in September 1993, of the claimant's shop, which killed one employee and injured three others. And a second drive-by shooting occurred at the claimants' home. The male claimant also testified that during the first week of October 1993, his home was raided and he was beaten. This testimony was consistent and not contradicted.

The claimant also testified that a Deputy Commander's family in Lahore, (wife and five children), were murdered in 1993.

* * *

Taking these considerations into account, the male claimant's testimony concerning material aspects of his claim, particularly in the period 1989 to the time of his initial entry into Canada, are fundamentally inconsistent. The only finding that the panel can make is that the male claimant appeared to be in conflict with competing political parties during this period of time and that he was detained for a period of time.

(A.R. pp. 7-12)

[4]      The central factor in this case is the applicant's adherence to and membership in the SSP. The CRDD wrote this:

However, the male claimant has provided documentation and consistent testimony concerning his affiliation with the SSP. The panel accepts that the male claimant was an active member of the SSP and, as a result, attracted the enmity of opposing political parties. In the context of the violent relationship of political parties in Pakistan, the panel accepts that the claimant was persecuted as a result of his membership in the SSP. The level of violence occurring between opposing factions in Pakistan is severe and the documentation is quite clear that persons with significant political profiles carry a substantial risk of harm. There are numerous examples in the documentation of the murder of SSP members and families, (for example, exhibit C-5, p. 23). The panel accepts that there is more than a mere possibility that the male claimant, his wife and child could suffer extra-judicial harm if they were required to return to Pakistan.

The panel, therefore, finds that the male claimant, his wife and child have a well-founded fear of persecution if they are required to return to Faisalabad, Pakistan. Given that the violence extends across the length and breadth of Pakistan, the panel finds that the male claimant, his wife and child could not be extended to relocate to another part of Pakistan in reasonable safety and security.

(A.R. p. 13)

[5]      To this point, the applicant and his wife and child appear to have the valid status of Convention refugees. There is, however, the matter of exclusion pursuant to article 1.F.(a) of the Schedule. Let it be confirmed now that the CRDD determined the applicant's wife and child to be Convention refugees, without doubt. It is the CRDD's determination that the applicant is excluded from that status which is in issue here.

[6]      The CRDD rightly stated that the onus of proof that the applicant attracts serious reasons for considering that he has committed an excludable act lies on the respondent. The standard of proof is less than a balance of probabilities: Ramirez v. M.E.I. [1992] 2 F.C. 306, 89 D.L.R. (4th) 173 (C/A). The Court's judgment was written by the late Mr. Justice MacGuigan, wherein he expressed these thoughts:

Therefore, although the appellant relied on several international authorities which emphasize that the interpretation of the exclusion clause must be restrictive, it would nevertheless appear that, in the aftermath of Second World War atrocities, the signatory states to this 1951 Convention intended to preserve for themselves a wide power of exclusion from refugee status where perpetrators of international crimes are concerned.

The U.N.H.C.R. Handbook, op cit., at p. 35, states:

147. The pre-war international instruments that defined various categories of refugees contained no provisions for the exclusion of criminals. It was immediately after the Second World War that for the first time special provisions were drawn up to exclude from the large group of then assisted refugees certain persons who were deemed unworthy of international protection.

148. At the time when the Convention was drafted, the memory of the trials of major war criminals was still very much alive, and there was agreement on the part of States that war criminals should not be protected. There was also a desire on the part of States to deny admission to their territories of criminals who would present a danger to security and public order.

149. The competence to decide whether any of these exclusion clauses are applicable is incumbent upon the Contracting State in whose territory the applicant seeks recognition of his refugee status.

* * *

I do not view a less-than-civil-law onus, however, as amounting to "domestic discretion", because I believe it is in accord with the international standard, and assigns roughly equal weight to the terms "serious" and "considering" within that standard.

There was no issue between the parties as to which party bore the onus. Both agreed that the burden of establishing serious reasons for considering that international offences had been committed rested on the party asserting the existence of such reasons, i.e., the respondent. Aside from avoiding the proving of a negation by a claimant, this also squares with the onus under s.19(1)(j) of the Act, according to which it is the government that must establish that it has reasonable grounds for excluding claimants. For all of these reasons, the Canadian approach requires that the burden of proof be on the government, as well as being on a basis of less than the balance of probabilities.

(F.C. pp. 312-14)

(D.L.R. 176-77)

[7]      The SSP is a Sunnite (sometimes: Sunni) organization which regards the Shi'ites (sometimes: Shia) as its enemies. This is as sad as the divisions of Christendom and Judaism, since both Shia and Sunnites are ancient branches of the same faith: Islam.

[8]      The Court takes judicial notice of the early and momentous Islamic schism between Sunnites and the Shi'ites. In the year 656 (A.D.) only some 24 years after the death of Muhammad, the Prophet and Messenger of God, and founder of Islam, the third caliph (khalifa), a companion of the Prophet, called Uthman ibn Affan was assassinated by certain mutineers. Ali ibn Abi Talib, a cousin and son-in-law of the Prophet succeeded Uthman, becoming the fourth caliph. He had married Fatima, the only surviving offspring of Muhammad and his first wife Khadijah. Ali and Fatima had two sons, Hasan and Husayn (Hussein). Ali was a man of charisma to whom many folks accorded their staunch loyalty. Many of these (Alids) held that the leadership of Islam should stay in the Prophet's family with Ali as his rightful, even designated successor and indeed, heir. Ali's partisans became known as Shii (shiat-u-Ali, Ali's party) and in their view, the first three caliphs had been usurpers, depriving Ali of his rightful place. During the few years of Ali's rule, there were two major rebellions. His forces put down the first, inspired by Aisha, Muhammad's youngest widow.

[9]      More momentous was the challenge mounted by Muawiyah, the late Uthman's nephew who refused to accept Ali's appointment to rule in Damascus. Ali responded with force which convinced Muawiyah's soldiery of their imminent defeat, and raising Qur'ans on the tips of their lances, they cried out: "Let God decide". Ali accepted, and the subsequent arbitration brought about two significant results. A break-away splinter of Alids, the radical Kharijites, (seceders) repudiated Ali for his "weakness" in failing to subdue Muawiyah; and Muawiyah continued to rule Syria and later, Egypt as well. Ali was murdered by the Kharijites in 661, and Muawiyal gained the place of caliph, making Damascus his capital. Yazid, Muawiyah's son, came to power in 680, and Husayn, Ali's son, led a rebellion against Yazid, but he and his small band of followers were annihilated and this "martyrdom" of those Alids has inspired Shi'ite muslims ever since. For them the first injustice, denying Ali's succession to Muhammad, had been compounded by thwarting the rightful rule of the Prophet's dynasty.

[10]      So, the Shi'ites propound the doctrine of the imamate, in contrast with and opposed to the Sunnites' selected or elective caliphate. In denying the ruling succession of the descendants of Ali and Husayn, the Sunnites are seen by the Shi'ite to be poor-mounthing the Prophet, or at least, his line. Who can resolve this? The Shi'ite, believing all the imams, except the twelfth, to have been martyred, are awaiting the twelfth Imam, whom they certainly do not call a caliph. The sultan of Turkey was the caliph whom Mustafa Kemal Atatürk deposed in the early 1920s. Any objective, reputable history text on Islam tells all of this in greater detail.

[11]      Islam is one and the latest of the three great Abrahamic religions, the earlier two being Judaism and Christianity. Courts in the Western world take judicial notice of the historic events in the earlier two Abrahamic religions such as the Jews' exodus from Egypt, their Babylonian exile, the golden calf and the Ten Commandments as well as the great schism between Byzantium and Rome, and the Protestant Reformation and others. The Court therefore also takes judicial notice of the notable historical fact of the great Islamic schism between the Sunnites and the Shi'ites.

[12]      The schism appears to be profound and irreconcilable, but of course even such a schism does not always and everywhere prevent the parties from living in peace on the basis of live, and let live.

[13]      However the Sepah-e-Sahaba, of which the applicant is a committed supporter, does not take a peaceful attitude toward their Shi'ite fellow citizens, as the CRDD was amply justified in concluding. There was before the panel evidence of SSP murderers massacring innocent Shi'ites at prayer. Like almost everyone who adheres to a murderous organization, the applicant denied knowledge or complicity with those SSP members who murder Shi'ites. He testified that he was dedicated to the peaceful almsgiving and educational activities of the SSP He gave an office and other premises to the SSP rent free, for which benefaction he was accorded the title and honour of "Deputy Commander", which he orally diminished as being wholly honorific and inconsequential. The applicant testified that in addition to office use, the rent-free premises were used for classes of young people who were educated to memorise the Holy Qur'an (sometimes called the Koran). Given the implacable enmity toward Shia inherently expressed in the applicant's testimony, those children, one can easily infer, were not educated to be "merciful and compassionate toward, and love, thy Shi'ite neighbour". Rather, the Court infers, they were, and are, educated to detest the Shi'ites. The widows and children of deceased Sepah-e-Sahaba members were objects of the applicant's beneficence, too. Did the Nazis or the I.R.A. do less? The respondent contends that the SSP is a terrorist organization, condemned under Article 1.F.(a) of the Act's schedule.

[14]      In his testimony before the CRDD the applicant described the animating principles of the SSP. Volume 2 of 3 of the tribunal record (TR) contains the pertinent documentary evidence and transcript of proceedings before the CRDD. In active Pakistani politics many participants must "die by the sword", for the applicant testified to the epidemic violence, whereby many "live by the sword".

[15]      Among the documentary evidence is a country report by the U.S. Department of State, dated March 14, 1996, at TR p. 442, exhibit R-13. At p. 446 the following paragraph appears:

According to police sources and the Citizen Police Liaison Committee (CPLC), on the morning of March 10, two activists of the militant Sunni organization Sipah-I-Sahaba Pakistan (SSP) were gunned down in the Landhi area of Karachi. That afternoon, a powerful bomb explosion outside a Shi'a mosque in Malir district killed 12 persons, including 8 children. On March 12, assailants entered a building in Karachi, gathered seven men from three Shi'a families, and shot them. The assailants, who are thought to be members of the SSP or hired killers, were later arrested and are being tried for those murders.

The SSP is mentioned again, on p. 457 thus:

On August 24, a group from the radical Sunni Siph-e-Sahaba (SSP) attacked and ransacked the British Broadcasting Corporation (BBC) office in Islamabad and physically beat the BBC correspondent and a member of his staff. They were protesting a BBC documentary on the SSP's sectarian activities in Pakistan. SSP Chief Maulana Zia-ur-Rehman Farroqi publicly claimed responsibility for the incident, saying that it was intended as a peaceful protest, not a sacking of the office. The Prime Minister publicly deplored the attack and Punjab police arrested Farroqi, but later released him.

Another mention of SSP activities is noted on p. 461 of the TR, vol. 2:

Anwar Yaqub Masih, a Christian arrested in 1993 on the charge of uttering "blasphemous phrases against the Prophet Mohammed", has served 2 years in the Faisalabad District Prison awaiting the conclusion of his trial. Following the February acquittal of Salamat and Rehmat Masih by the High Court, SSP activists announced that "as the courts were not likely to punish blasphemers" they would themselves kill Anwar Masih. In March following defense counsel Asma Jehangir's application for transfer of the case from Samundri to Faisalabad, the Lahore High Court ordered the staying of the proceedings at Samundri until further notice. Anwar Masih remains in prison.

[16]      The foregoing mentions of SSP show it through its militant members to be given to random bomb and gunshot retaliation against innocent Shi'ites, men, women and children whom the SSP murdered, vicious destruction of foreign broadcasters' property and perverting the course of justice by taking the law into their own hands by, in effect, lynching those whom the Court acquitted of blasphemy.

[17]      The applicant testified that his organization, the SSP accuses Shi'ites of blasphemy or next thing to it. Denying what others have written about SSP - that its goal is to make Pakistan a Sunnite State - the applicant did aver (TR p. 555) that his organization's purpose "is to stop people from maligning the names of the successors or kalifs who followed the Prophet of Islam". This much the applicant freely admitted. The respondent's counsel elicited only denials and professions of ignorance from the applicant when he put to the applicant articles about the SSP calling for the elimination of all pakistani Shi'ites - 20% of the population. (TR p. 560.)

[18]      The CRDD made these findings which this Court holds are proper on the evidence:

The parties were given a considerable amount of time to gather evidence on the SSP and there is no indication that the violent activities of the SSP are carried on in a separate organizational identity. The violence seems to be inherent to the goals of the organization and the male claimant was an active volunteer dedicated to the SSP.

3.      Although the panel accepts the claimant's evidence that he was personally only involved in religious, charitable and educational aspects of the SSP, there is no evidence that these activities are organizational separate from the SSP's political and militaristic activities. Accordingly the present case is distinguishable from the line of cases where a claimant is involved in peaceful, political, educational, or religious activities separate and distinct from the militant wing of an organization.

4.      In light of the foregoing, it is reasonable to conclude that the claimant shared a common purpose with the SSP and its fundamental characteristic as an organization engaged in sectarian violence and he served the goals of that organization through his activities.

In his submissions, counsel ably and correctly argued that there was no evidence specifically linking the male claimant to his participation in any violent activities. However, the test applied by the panel is broader than requiring specific evidence that the claimant was personally involved in violent acts. The panel must consider whether the claimant was a willing and knowing accomplice in the goals of the SSP, including violence whether in retribution or in promotion of the goals of the SSP. The evidence leads the panel to conclude, on a balance of probabilities, that the male claimant is so complicit.

The panel, therefore, finds that there are serious reasons for considering that the claimant committed an offence under Article 1.F.(a) of the Schedule and is, therefore, excluded from the protection afforded by recognition as a Convention refugee.

(AR pp. 17 & 18)

Moreover, once inducted, membership in the SSP is never terminated. (TR, vol. 2, p. 564.)

[19]      The CRDD's determination can be supported by analogy. It is well known historically that many persons who were members of the Nazi party claimed not to know of its policies by which it caused the Third Reich to implement policies of the ultimate murderous racism against all Jews, some Slavs and all Gypsies. This ploy was deemed not credible in almost all instances and those Nazis were legally and morally condemned for helping and promoting a terrorist party through which they participated in persecuting their fellow nationals. So it is, almost always, with the IRA and the Hezbollah, too. To give support to such organizations is to help promote their terrible and murderous persecutions of the civil population, or some segment of it, in their own countries. A Convention refugee has to demonstrate a well-founded fear of persecution, but is naturally excluded from refugee status if he or she in turn persecutes others, inflicting terror or a well-founded fear upon them. Whether such a person be a refugee or not is really immaterial if he or she also, in effect, creates refugees through persecution. Such is, the, or a, true meaning of Article 1.F.(a) of the Act's schedule.

[20]      The applicant seemed to realize that he was impaled on his own description of his organization's purpose above quoted from the Tribunal Record, vol. 2, p. 555. He actually succeeded in evading an answer to the obvious question, or the obvious conclusion portended by the question.

BERMAN      You said before that part of the purpose of the Sipa Shaba [SSP] was to ensure that the Shias don't blasphemy [sic] the Prophets?

CLAIMANT #1      Yes.

BERMAN      How would the Sipa Shaba seek to obtain that objective?

CLAIMANT #1      If you want the details of Sipa Shaba it's like this. That after Prophet Mohammed there were four (inaudible), Prophet (inaudible) Salif (ph) and (inaudible), Hazra Husman (ph) and Hazra Ali. And we believed in all the four kalifs, whereas Shias only believe in Hazra Ali. This was one difference that was made clear to us and it was said that it is not desirable and acceptable that they should be blaspheming the other three and my sympathies with Sipa Shaba also because of this. That yes in reality we believe in all th four kalifs and we should all respect all the four kalifs.

BERMAN      Thank you. The question was how do you obtain the objective of stopping the Shias from blaspheming the three Prophets?

CLAIMANT #1      This I don't know how they would stop it because my involvement in it is not that much.

(TR, vol. 2, p. 590)

[21]      The matter about what the SSP is doing to achieve its objective to make them stop blaspheming came up again, as recorded in vol. 2 of the TR on p. 602 but the applicant's counsel's objections obviously deflected the respondent's counsel from pursuing an answer. The answer is pretty obvious. How does one make Shi'ites stop being Shi'ites? How does one make the leopard stop having spots? Eliminate leopards and then there will be no leopards with spots, is how.

[22]      The applicant was asked why he persists in returning to Canada after his refugee claim was once before rejected. On pp. 591-92 of TR, vol. 2, the applicant is recorded as stating, in part, that here he "can extend my political sympathies" and can continue promoting SSP with about 10 other members who are here now and have made the same claims. Does Canada really need to take in persons who are locked-in members of organizations dedicated to the killing or other elimination of people in their own homelands? Parliament has answered the question in Schedule 1.F.(a) of the Immigration Act.

[23]      One of the CRDD members put another question to the applicant to which his roundabout answer must have diminished his credibility:

* * * [in] our work here * * * on occasion we receive claims from for example Ahmadis or Shias who say that they fear the Sipa Shaba and notwithstanding your fairly lengthy involvement with the Sipa Shaba you deny absolutely any knowledge of some of the activities of the Sipa Shaba. How is it that we would know about this and you wouldn't?

CLAIMANT #1      I joined Sipa Shaba in 1987, 1988. Thereafter my participation in that was, I mean that as a member, it was only as a member and I could give donations to the extent that I could afford them. Thereafter I came to Canada in '89 and I stayed here till '92 and after going back in '92, I restarted the office in '93 and as far as I know about Sipa Shaba and there are people from Faga Jaffria who are hot tempered and they do pick up (inaudible) and fights. I have no even intellectual sympathy with them. I say this should not happen like that. That whatever the differences are they should be settled by sitting down and discussing things. That these kinds of fights and quarrels which I also hear about, these should not take place.

(TR, vol. 2, p. 592.)

Indeed, it would have been difficult for the CRDD to put any credence in the applicant's purported innocent ignorance, when the CRDD members themselves were hearing from Pakistanis fears of persecution at the hands of the applicant's beloved organization, the SSP. The CRDD just could not believe that after all his years of work and financial sacrifice, after his having been honoured by the SSP by being designated a Deputy Commander, he knew nothing of the SSP's persecution of Ahmadis and Shi'ites whom he and the SSP aimed to make them stop - being Ahmadis and Shi'ites!

[24]      This Court finds that the CRDD made no legal or procedural - or any - error in holding that there are serious reasons for considering that the applicant committed an offense under Article 1.F.(a) of the Act's Schedule and is, therefore, excluded from the protection afforded by recognition as a Convention refugee. The application for judicial review of the CRDD's decision is accordingly dismissed.

[25]      The applicant's counsel argues that the Sepah-e-Sahaba is not exclusively devoted to a single, brutal purpose, but has other activities such as education and charity as benign purposes.

[26]      The same could be said for the Nazi party of the Third Reich, the former apartheid régime of the Republic of South Africa, the I.R.A. and the Protestant militias of Ulster, the Hezbollah, the Ku Klux Klan and any number of organized haters. The question, it appears, is what purpose is the organization's sine qua non? Would Sepah-e-Sahaba exist only for its allegedly benign projects? This Court thinks not. After all, its officers, both active and honorary are styled "commanders" and the organization's very name "sepah", means "soldiers" (ref. the sepoy mutiny). It is true that in the U.K., North America, Australia and New Zealand, at least, there is the Salvation Army, but there is no evidence, and no one has ever accused them, of massacre and of bombing churches, or mosques.

[27]      The applicant's counsel has proposed, and the respondent's counsel opposes, this question:

What is the degree of involvement in an organization that is not exclusively devoted to a single, brutal purpose, but is alleged to have acted violently, in order for a refugee claimant to be found an accomplice to the commission of crimes against humanity by that organization?

This Court declines to certify that precise question which the applicant's counsel has specified pursuant to this Court's Immigration Rule 18(2). That formulation skews the facts needed to be stated to include all the pertinent ingredients found here.

[28]      If this Court were to certify a question herein, it would ask: if article 1.F.(a) contemplates one who supports an organization like, (or being) the SSP whose sine qua non is "stopping" (persecuting) fellow-citizen religious opponents (Shi'ites), (or Ahmadis) from being adherents of their detested religions, only for their religions, because the subject gives support in terms only of time, money, work and social status, although he or she is not the trigger-squeezer, the club-wielder, the match-striker or the bomb-setter? Such a question would be more to the point than that which the applicant's counsel posed, because it includes all the pertinent ingredients. Are the supporters who do not bloody their own hands free of responsibility? It also makes allowance for the applicant's lack of credibility in protesting that he had never before heard of the SSP's persecution of Shi'ites and Ahmadis. He protested before the wrong tribunal, from his point of view, for the CRDD knew better and simply could not believe him.

[29]      The law surely states this: that one cannot give moral, social, temporal and financial support to a terrorist or murderous, intolerant organization in one's homeland, and still expect to be welcomed as a refugee in Canada. That is sufficient, but to promise to keep on giving support to such a horrible organization from and in Canada is just an extra, insupportable provocation to and against the laws of Canada.

                                 F.C. Muldoon

                                 Judge

Ottawa, Ontario

July 7, 1998