Date: 20050722
Docket: IMM-7634-04
Citation: 2005 FC 1017
Ottawa, Ontario, this 22nd day of July, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
RAJA MUZAMAL KIANI YAQOOB
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application by the Minister for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "RPD") dated August 19, 2004 refusing the Minister's application to vacate the refugee status of Mr. Raja Muzamal Kiani Yaqoob under section 109 of the Immigration and Refugee Protection Act, S.C.2001, c.27 ("IRPA").
[2] Mr. Yaqoob arrived in Canada on April 15, 1995. He claimed refugee protection and a hearing was held in December 1996 in front of a two-person panel of the Immigration and Refugee Board, Convention Refugee Determination Division (CRDD) in Calgary. At the hearing, he claimed to be member of the Jammu and Kashmir Liberation Front (JKLF) and that consequently he faced persecution in Pakistan. The possibility of exclusion was raised at his hearing, but the Board was satisfied that it was not an issue. In its written reasons, it found:
The claimant related credible evidence which convinced the panel that he was not an advocate of violence in his own political objectives. In this context, the panel concluded that there was no issue of exclusion in relation to this claim.
The panel concluded that the claimant was a credible and trustworthy witness, and accepted his testimony.
[3] Mr. Yaqoob then applied for permanent residence status. An immigration officer determined that the JKLF was a terrorist organization and prepared a section 27 report under the Immigration Act, R.S.C., 1985, c.I-2. At an inquiry before the Adjudication Division (AD), the Adjudicator found him to be a person described in paragraph 19(1)(f)(iii)(b) of the former Act (a member of a terrorist group and consequently removable). This decision was upheld by a three-person panel on appeal to the Immigration Appeal Division (IAD) in December 2001.
[4] The Minister then applied to the RPD to vacate the finding that Mr. Yaqoob is a Convention refugee. The Minister argued that there were material differences between the testimony given before the RPD and at the AD, and that Mr. Yaqoob withheld from the CRDD his true knowledge of the activities of the JKLF. Had he been truthful, the CRDD would have found him excluded under Articles 1(F)(a) or 1(F)(c) of the Refugee Convention. The Minister also requested that the RPD consider materials that were not before the CRDD, including information from a website purporting to represent the JKLF and to describe its objectives.
[5] Mr. Yaqoob argued before the RPD that, even taking into account his misrepresentations (which were denied on the grounds that the Board was well aware of the evidence regarding the nature of the JKLF), the CRDD specifically considered the possibility of exclusion, and concluded that he was not excluded. For the purpose of the hearing, it was conceded that the JKLF is a terrorist organization and that Mr. Yaqoob was a member. However, mere membership in a terrorist organization is not enough, the applicant contended, and there was evidence that there were different factions within the JKLF. There was also conflicting evidence about the nature of the JKLF.
DECISION UNDER REVIEW
[6] The RPD reviewed the differences between the oral testimony at the CRDD and the AD hearings and found that Mr. Yaqoob indirectly and knowingly misrepresented and/or withheld material facts from the CRDD, as is required to vacate a decision to allow a claim for refugee protection under IRPA subsection 109(1). These misrepresentations related to his knowledge of violent acts committed by the organization.
[7] However, having reviewed the documentary evidence before the CRDD, the RPD found that under IRPA subsection 109(2) there was "other sufficient evidence" that could "justify refugee protection" and accordingly dismissed the Minister's application to vacate the prior decision.
[8] The RPD found:
It is clear that the panel had raised the issue of exclusion and Respondent's counsel asked questions specifically about the possible criminality of some of the actions of the JKLF. Clearly, the panel was alive to the issue and aware that there were documents - which were in disclosure - that dealt, perhaps inconclusively, with the issue of terrorist activities of the JKLF. In particular, PAK19133.E; dated February 6, 1995 referred to the JKLF having a "military wing." PAK20606.E dated May 19, 1995 referred to a national spokesman for the JKLF denying that the organization was involved in "military or violent activities." There is as well, documentary evidence that indicates that the Pakistani government at times mistreated members of the JKLF. However, the documentary evidence in front of the original panel made it clear that there appeared to be both a militant and a non-militant wing of the party. As to the issue of violence or terrorism it must be said that the evidence was vague and inconclusive. Given this, and the fact that the claimant admitted at the IAD to no more than reading newspaper reports that accused his party of committing acts of violence, the panel finds that there was sufficient evidence in front of the original panel that could have justified a finding of refugee protection.
ISSUES
[9] 1 Did the Board err in failing to consider recent evidence regarding the JKLF and its activities?
2. Did the Board err in failing to apply the correct test for exclusion under Article 1(F)(a) of the Convention by not taking into consideration "limited, brutal purpose"?
3. Did the Board err in failing to apply the correct test for complicity under Article 1(F)(a)?
STANDARD OF REVIEW
[10] The standard of review of factual determinations by the Refugee Protection Division is, in general, patent unreasonableness, except for questions of relevance and interpretation of the law where the standard is correctness. Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Mohammed v. Canada (Minister of Citizenship and Immigration) 2003 FC 954; Traore v. Canada (Minister of Citizenship and Immigration) 2003 FC 1256; Nur c. Canada (Ministre de la Citoyenneté et de l'Immigration) [2005] A.C.F. no 773 (F.C.).
[11] A patently unreasonable decision is "clearly irrational" or "evidently not in accordance with reason", so flawed that no amount of curial deference can justify letting it stand: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 52. In Voice Construction Ltd. v. C.G.W.U., [2004] 1 S.C.R. 609 at para. 18, the Supreme Court said that to be patently unreasonable, the decision must be so clearly wrong that "the result must almost border on the absurd."
ARGUMENT AND ANALYSIS
[12] Section 109 reads as follows:
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109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.
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109. (1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d'asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait.
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(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.
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(2) Elle peut rejeter la demande si elle estime qu'il reste suffisamment d'éléments de preuve, parmi ceux pris en compte lors de la décision initiale, pour justifier l'asile.
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(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.
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(3) La décision portant annulation est assimilée au rejet de la demande d'asile, la décision initiale étant dès lors nulle.
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1. RECENT EVIDENCE
[13] The Minister argues that the RPD erred in failing to consider evidence that was not before the original panel. Once Mr. Yaqoob was found to have misrepresented material facts at the determination hearing, the RPD was bound to consider all of the evidence available to determine the issue of exclusion.
[14] Mr. Yaqoob submits that the "new evidence" was not new and was available to the original panel either through IRB documentation or open sources, such as those relied upon for the AD hearing. Alternatively, he submits that the RPD did not err in only considering evidence that was before the original panel. Subsection 109(2) clearly refers to evidence available at the time of first determination
[15] In Coomaraswamy v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 501 (C.A.), Justice Evans concluded that the phrase, "there was other sufficient evidence", in the predecessor enactment to subsection 109(2) under the former Act, clearly indicated that Parliament intended to confine the Board at the vacation hearing to considering the material that had been put before the Board when it determined the refugee claim. He noted, at paragraph 17, that the Minister may adduce additional evidence that was not previously before the Board for the purpose of establishing that the claimant had made misrepresentations at the determination hearing. Similarly, the claimant may present evidence to demonstrate that there were no misrepresentations.
[16] Coomaraswamy was considered and applied by Justice Rouleau in Aleman v. Canada (Minister of Citizenship and Immigration) 2002 FCT 710 in which he stated at para. 35:
In my view, the vacation panel clearly was entitled to consider the new evidence regarding the Applicant's alleged crimes against humanity that was not before the original panel. It could not otherwise establish whether the Applicant would have been excluded from Convention refugee status under Article 1F(a) of the Convention, had he not failed to reveal such evidence at the original hearing.
[17] Both Coomaraswamy and Aleman were decided under the former Immigration Act. For the purpose of these proceedings there is no material difference in the legislation.
[18] This is not a case, as in Aleman, where there was fresh evidence of allegations that the claimant himself was directly involved in crimes against humanity. Rather, the respondent is alleged to have been complicit by reason of his membership and active role in the JKLF. The Minister submits that knowledge of its violent activities should therefore be imputed to him.
[19] The RPD considered the fresh evidence adduced by the Minister and relied upon it to establish the respondent's misrepresentation of material facts at the original hearing. While it was open to the RPD to consider that evidence to conclude that the respondent would have been excluded from Convention refugee status had the original tribunal been fully acquainted with the facts, it was also open to the tribunal to find otherwise on the evidence before it. It was then open to the Board to reject the Minister's application under subsection 109(2) if it was satisfied that other evidence sufficient to justify refugee determination was considered at the prior hearing. In making the decision that there was other sufficient evidence to justify a positive refugee determination, the RPD was restricted by the terms of subsection 109(2) to the evidence that was before the original panel: Coomaraswamy, supra. It did not, therefore, err in my view in referring solely to that evidence and not to the fresh evidence adduced by the Minister in making that finding.
[20] There will be situations in which the material facts misrepresented or withheld compel the conclusion that the claimant would have been excluded from refugee determination had the true facts been known, despite other evidence supporting a refugee determination. The RPD found that this is not such a case and I cannot conclude that its finding was patently unreasonable.
2. Limited, brutal purpose
[21] The Minister submits that the RPD erred in failing to consider whether the political objectives of the JKLF could be separated from the terrorist objectives, despite its finding that there was some evidence that there were different wings within the JKLF. If the political objectives could not be separated from the militaristic objectives, then it is an organization with a limited, brutal purpose and mere membership could be grounds for exclusion: Pushpanathan v. Canada (Minister of Employment and Immigration) 2002 FCT 867; Mehmoud v. Canada (Minister of Employment and Immigration) [1998] F.C.J. No. 1019 (T.D.) at para. 26.
[22] If the RPD had applied the correct test, the applicant argues, it could easily have found that the JKLF had a limited, brutal purpose, and excluded him under Article 1(F)(a). By failing to apply the test, the RPD erred in law.
[23] Mr.Yaqoob submits that mere membership in an organization that occasionally commits international offences is not normally sufficient for exclusion from refugee status: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.). His involvement was entirely non-violent and he was only aware of newspaper reports, which he did not trust, referring to allegations of crimes against humanity by the JKLF.
[24] This is not a case in which there is an abundance of evidence about the commission of outrages by the impugned organization. While the RPD's reasons do not explicitly refer to the question of whether the JKLF has or had a limited, brutal purpose, there are references to documentary evidence that indicate the organization had both military and non-military wings. Further it describes the evidence of violence or terrorism as vague and inconclusive. I infer from those references that the RPD considered the question and concluded that there was insufficient evidence that the political and military objectives of the organization were inextricably linked. In effect, the applicant is asking the Court to reweigh the documentary evidence and reach a different conclusion. I am unable to find that the RPD erred in law in failing to apply the correct test.
3. Complicity
[25] The Minister submits that the RPD failed to apply the correct legal test with respect to complicity. If Mr. Yaqoob was found complicit in the terrorist activities of the JKLF, he would also have been excluded under Article 1(F)(a). The RPD erred in relying only on Mr. Yaqoob's testimony that he knew little about the violence attributed to the JKLF. It should have considered whether his position as a fund-raiser and acting Chief Organizer could result in an inference of knowledge and involvement, and thus complicity.
[26] In Gutierrez v. Canada (Minister of Employment and Immigration) (1994), 84 F.T.R. 227 (T.D.) at para. 22, Justice MacKay found:
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 offenses 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.
[27] With regard to personal and knowing participation, in Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)at para. 51, the Court of Appeal held that:
Equally important, however, is the fact that complicity rests on the existence of a shared common purpose as between "principal" and "accomplice". In other words, mens rea remains an essential element of the crime.
[28] On the evidence before the RPD, it was reasonably open to it to find that Mr. Yaqoob had no mens rea to participate in international offenses. The evidence that he was a local fund raiser and acting chief organizer did not compel the inference that he was complicit in any violence or terrorist activities. The RPD's finding that Mr.Yaqoob was not excluded from protection by reason of complicity was not, therefore, patently unreasonable.
[29] The respondent has proposed that the following question be certified:
If a finding of misrepresentation under subsection 109(1) of IRPA does not pertain to or is silent on whether it pertains to the issue of exclusion, does the RPD have any obligation under subsection 109(2) to re-consider the issue of exclusion in the context of any new evidence tendered by the Minister for the initial purpose of proving misrepresentation?
[30] I agree with the applicant that the question as drafted is specific to the facts of this case and is not of general importance. Further, given my findings above, I do not believe it would be dispositive of an appeal in this matter: Bath v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1207 (T.D.).
ORDER
THIS COURT ORDERS that the application is dismissed. No question is certified.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7634-04
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND
RAJA MUZAMAL KIANI YAQOOB
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 15, 2005
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: July 22, 2005
APPEARANCES:
Sandra Weafer FOR THE APPLICANT
Lawrence Wong FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHN H. SIMS, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
Vancouver, British Columbia
LAWRENCE WONG FOR THE RESPONDENT
Wong Pederson Law Offices
Vancouver, British Columbia
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