Date: 20020829
Docket: IMM-2012-01
Neutral Citation: 2002 FCT 908
Between:
HOVAIZ Hoshyar
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated March 19, 2001, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, ch. I-2.
The applicant is a citizen of Iraq. He fears persecution at the hands of the Iraqi authorities on account of his political opinions and his Kurdish ethnicity.
The Board determined the applicant not to be a Convention refugee because there are serious reasons to believe that the applicant had committed crimes against humanity as referred to in clause 1F(a) of the United Nations Convention Relating to the Status of Refugees (the Convention). The Board supports this conclusion with the following reasons:
- The applicant was a member of the Patriotic Union Kurdistan (PUK), whose purposes according to documentary evidence are limited and brutal since 1997.
- In February 1998, the applicant gave information to Sherwan Pasha concerning the visit of a high-ranking member of the Arab Baath Party to Kirkuk. This information that he provided would have assisted the PUK to assassinate this official.
- The applicant knew what the information would be used for.
The critical portion of the Board's decision appears at page 4 of its reasons:
The evidence thus shows that the claimant knowingly became a member of an organization notorious for the commission of crimes against humanity.
He remained a member for two years during which time he aided and abetted in attempted kidnapping - a serious criminal act - committed for the political purposes of the PUK. His claim that he did not know the specific purpose of this crime to a pre-planned murder is irrelevant, as is the failure of the plan to achieve its result. His participation marks him as a willing, voluntary and fully complicit participant in the PUK.
His testimony clearly shows he knowingly and willingly shared the common purpose of the PUK from 1997 to 1999. The documentary evidence of that purpose has already been referred to.
There are therefore serious reasons to believe that the claimant had committed crimes against humanity as referred to in clause 1F(a) of the Convention.
* * * * * * * * * *
Article 1F(a) of the Convention states:
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 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;
In Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306, the Federal Court of Appeal interpreted the word "committed" in article 1F(a) of the Schedule by enunciating the following principles:
(a) mere membership in an organization involved in international offences is not sufficient for exclusion from refugee status;
(b) personal and knowing participation in persecutorial acts is required;
(c) membership in an organization which is directed to a limited, brutal purpose, such as secret police activity, made by necessity point to personal and knowing participation;
(d) mere presence at the scene of persecutorial acts does not qualify as personal and knowing participation.
Further, in Gutierrez et al. v. M.E.I. (1994), 84 F.T.R. 227, this Court confirmed the prerequisites of complicity at pages 234 to 236:
. . . (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.
[. . .]
. . . (1) the period of time that the person was a member of the organization, (2) the earliest possible date that the person had an opportunity to leave the organization, (3) the consequences that the person would have exposed himself or herself to for speaking out against the commission of international offences, for failing to respond to orders, or for desertion, and (4) the circumstances in which the person left the organization.
* * * * * * * * * *
The applicant first argues that the Board's decision that the PUK is an organization which committed international offences as a continuous and regular part of its operations and which carries a limited and brutal purpose is not supported by the evidence. I do not agree with this assertion. In the present case, after having read the oral and written testimonies as well as reviewed the evidence, I do not feel that evidence was misinterpreted by the Board and its decision appears to be founded both on the applicant's testimony and the documentary evidence.
Furthermore, the applicant, who has not challenged the Board's finding that he was a member of the PUK, further asserts that he was unaware of the PUK's human rights violations for as long as he lived in Kirkuk.
The applicant's assertion is not entirely true though. First of all, as evidenced by his testimony, the applicant voluntarily joined the PUK in March 1997 after having thought about it.
As well, the applicant was aware of the incidents of kidnapping by the PUK that had occurred in 1997, which led to a prisoners exchange, and he knew that the information he was providing could lead to such kidnappings.
Further, the applicant clearly said that he heard allegations of the PUK's brutality but that he chose not to believe them.
The Tribunal Record further shows that the applicant testified on several occasions that he had heard a lot of information about the assassinations, kidnappings and fighting by the PUK. It is also clear that the applicant was ready to help his party, in this case it meant to provide information, even if that would lead to the kidnapping of civilians.
In my view, having gained this knowledge regarding the PUK, in addition to its history of kidnapping and other allegations of atrocities, the applicant's failure to withdraw from the organization can legitimately be taken as indicating his support for the PUK's objectives, and the means used to attain those objectives.
The fact that the applicant asserted before the Board that he altered his participation in the PUK after learning of the attempted assassination in February 1998, does not remedy his continued participation in the organization.
The critical conclusions reached by the Board were that the PUK is an organization with limited and brutal purposes, the applicant supported the PUK in an attempt to commit a serious crime, and the applicant did not dissociate himself from the organization after realizing that information he provided was used in an assassination attempt. After having reviewed the evidence on file, I cannot find that the Board committed any reviewable errors as there is significant evidence supporting its factual conclusions. Under such circumstances, it is well established that it would not be appropriate for this Court to substitute its own appreciation of the facts to that made by the specialized tribunal.
For all these reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
August 29, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2012-01
STYLE OF CAUSE: Hoshyar HOVAIZ v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 10, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: August 29, 2002
APPEARANCES:
Ms. Rachel Benaroch FOR THE APPLICANT
Mr. Michel Synnott FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Rachel Benaroch FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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