Date: 20000815
Docket: IMM-3246-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
-and-
ABIDULLAH MOHSEN
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD found the respondent to be a Convention refugee within the meaning of that expression in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 14th of June, 1999.
[2] The respondent is a citizen of Afghanistan. He bases his claim to a well-founded fear of persecution if required to return to Afghanistan by reason of his perceived political opinion and his ethnicity.
[3] The background to the respondent"s claim was essentially not in dispute before the CRDD. The CRDD found the claimant"s testimony, both written and oral, to be "...un-contradicted, detailed and forthcoming, and without discrepancies." The CRDD summarized the factual background in the following terms:
| The claimant was forcefully conscripted by the Afghan army in 1987. He deserted after one year because he did not want to kill his own people or be killed by them, as the army was waging a war against different Mujahadeen groups. He returned to his hometown of Mazar-I-Sharif and went into hiding. He considered leaving the country, but rejected the idea as he was the oldest son and felt responsible for his family in case anything happened to his father. After six months he met a friend who suggested that instead of hiding and eventually being caught for desertion, he should join him at the Ministry of State Security in Kabul, where he (the friend) could help him get a job in the Logistics Department, which he described as more in the nature of a purchasing department. The Ministry of State Security was also known as KhAD.... |
| The claimant accepted the offer as this was his only protection from being punished for desertion and staying in the country to fulfill his obligation to his family. His entry position was that of a 3rd lieutenant and after two years he was automatically promoted to 2nd lieutenant. He had the duty of a provision clerk in charge of buying food for the departments which he was assigned to. He worked at the 7th Department in Kabul for one year and was then transferred to Kandahar, where he stayed until the fall of the Marxist government in April 1992. |
| A Mujahadeen militia arrested him and many others shortly after the fall of the government. He was imprisoned and harshly interrogated regarding his employment with the Ministry of State Security. After three months he was brought before a Mujahadeen judge who sentenced him to death because of his association with the Marxist government. He was able to escape with the help of one of the suppliers from the Kandahar market whom he had befriended in previous years. He returned to Mazar-I-Sharif and started working in his uncle"s store, fearing discovery. After two months, his father warned him to leave the country immediately as he had seen his name on a wanted list. The claimant fled to Russia, where he has relatives, and tried unsuccessfully to be recognized as a refugee. Before claiming for status in Canada, he had travelled to the United States of America where he was also rejected as a refugee. |
[4] The CRDD determined the respondent"s claimed fear of persecution to be subjectively and objectively well-founded. The principal issue before the CRDD, and the sole issue on this judicial review, was whether or not the respondent was excluded from Convention refugee status by reason of article 1(F)(a) of the Convention Relating to the Status of Refugees and its related Protocol. The relevant portions of article 1(F), as it appears in the Schedule to the Immigration Act, reads 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;
...
|
F. Les dispositions de cette Convention ne seront pas applicables aux personnes don"t 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;
...
|
[5] The CRDD, in concluding that the respondent was not excluded, relied on the decision of the Federal Court of Appeal in Ramirez v. Canada (Minster of Employment and Immigration)2 and that of my colleague Mr. Justice McKeown in Saridag v. Canada (Minister of Employment and Immigration)3. I am satisfied that the CRDD"s reliance was well placed and that it made no reviewable error in reaching the decision that it did. In particular, I am satisfied that my own recent decision in Osagie v. Canada (Minister of Citizenship and Immigration)4 is distinguishable.
[6] The CRDD determined that the KhAD was an organization "...directed to a brutal and limited purpose". That being said, it examined whether the respondent was "wilfully blind" in accepting employment with the KhAD and concluded that he was not. I am satisfied that this conclusion was reasonably open. The respondent was determined only to have "street level knowledge" of the KhAD and of its activities. The evidence before the CRDD clearly established that he did not share its limited brutal purpose. To the contrary, he had, at great risk to himself, deserted the army because he wanted to have no part in the killing of Afghani civilians. Having deserted the military, he was left with precious few alternatives in Afghanistan if he wished to pursue his obligations to his family. In the result, reluctantly, albeit voluntarily, he joined the KhAD where he performed only administrative tasks. Both his tasks and his physical locations were remote from the sites at which the KhAD performed its brutal acts. Finally, while it could not be said that he left the KhAD at the first opportunity available to him, the options open to him, so long as he continued in his commitment to his family, and thus to remaining in Afghanistan, were nil. Given the considerations that led him to join the organization, his level of knowledge and the nature of his duties, the fact that he did not leave the organization until the government of which the organization was a part fell, was a reasonable one.
[7] Against the foregoing considerations, I am satisfied that this application for judicial review should be dismissed. I advised counsel of the result at the close of the hearing. Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
August 15, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
Respondent
| DATE OF HEARING: MONDAY, AUGUST 14, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: TUESDAY, AUGUST 15, 2000
| APPEARANCES BY: Mr. Jamie Todd |
Mr. Harvey Savage
For the Respondent
| SOLICITORS OF RECORD: Morris Rosenberg |
Deputy Attorney General of Canada
Harvey Savage
Barrister & Solicitor
393 University Avenue
Suite 2000
Toronto, Ontario
M5G 1E6
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000815
Docket: IMM-3246-99
BETWEEN:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
Respondent
__________________
1R.S.C. 1985, c. I-2.
2[1992] 2 F.C. 306 (C.A.).
3[1994] F.C.J. No. 1516 (Q.L.), (F.C.T.D.).
4[2000] F.C.J. No. 1133 (Q.L.), (F.C.T.D.).
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