Date: 20120106
Docket: IMM-2293-11
Citation: 2012 FC 15
Ottawa, Ontario, this 6th
day of January 2012
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
MULTANI, Balkar Singh
and
KAUR, Manjit
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
On
April 6, 2011, Balkar Singh Multani (the “principal applicant”) and his wife Manjit
Kaur (together, the “applicants”) filed the present application for judicial
review of the decision of Me Paule Robitaille, a member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”),
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”). The Board determined that the applicants were not Convention
refugees or persons in need of protection under sections 96 and 97 of the Act.
The Board specifically found that the principal applicant fell under the
exclusion of sections F(a) and (c) of Article 1 of the United
Nations Convention Relating to the Status of Refugees (the “Convention”) for
having been complicit in crimes against humanity (section 98 of the Act).
[2]
The applicants
are citizens of India. The principal applicant
was a member of the Center Reserve Police Force (“CRPF”) in India from 1980 to 2005. The applicants
claim refugee protection under sections 96 and 97 of the Act because of a fear
of persecution by the Indian police, for supposedly being suspected of
consorting with Sikh terrorists. Moreover, the principal applicant alleges he
fears Sukhdev Singh, an extremist militant. Singh would be after the principal applicant
because the latter claims to have made Singh’s wife his common-law wife in
order to mother his children, since his wife Manjit is supposedly unable to
bear children.
[3]
On
April 27, 2007, the applicants left India with the help of an agent. After arriving in Canada, they claimed refugee
status in Montréal on July 31, 2007.
* * * * * * * *
[4]
In
its decision, the Board concluded that the applicants did not qualify for
refugee protection under the Act. The principal applicant was excluded by the
operation of article 98 of the Act and sections F(a) and (c) of Article
1 of the Convention: there were “serious reasons” to believe he was complicit
in the commission of crimes against humanity, crimes of war or acts contrary to
the purposes and principles of the United Nations, having been a member of the
CRPF, the organization responsible for the perpetration of those crimes.
Moreover, the Board considered the applicants’ claim not to be credible,
disbelieving the story at the heart of their alleged persecution.
* * * * * * * *
[5]
The
applicable standard of review to the Board’s decision to exclude the principal
applicant from the definition of refugee under sections F(a) and (c)
of Article 1 of the Convention is reasonableness (Ryivuze v. The Minister of
Citizenship and Immigration, 2007 FC 134 at para 15 [Ryivuze]);
Harb v. Canada (Minister of
Citizenship and Immigration) (2003), 302 N.R. 178 [Harb]).
[6]
The
Board’s application of the test for complicity to the case at hand is a
question of fact and law and therefore must be reviewed according to a standard
of reasonableness (Ezokola v. The Minister of Citizenship and Immigration,
2011 FCA 224 at para 39 [Ezokola]; Bouasla v. The Minister of
Citizenship and Immigration, 2008 FC 930 at para 132). Therefore, the
Board’s conclusions must fall within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at
para 47 [Dunsmuir]).
[7]
This
same standard of reasonableness applies to the Board’s findings of fact (Canada (Citizenship and
Immigration) v. Khosa,
[2009] 1 S.C.R. 339; Alonso v. The Minister of Citizenship and Immigration,
2008 FC 683 at para 5; Harb at para 14).
* * * * * * * *
[8]
The
applicants do not attack the Board’s findings of credibility, nor the legal
test of personal and knowing participation identified by the Board. The
principal applicant admitted at the hearing that the CRPF carried out crimes
against humanity and that he was aware of their occurrence. However, he
emphasized that he never personally carried out any such crimes. The applicants
take the position that the Board’s findings of fact do not support a finding of
complicity. The issue then turns to whether the Board erred in finding that the
principal applicant had the personal and knowing participation necessary to
conclude that he collaborated with the CRPF.
[9]
The
applicants claim that the Board erred in not clearly stating whether it
considered the CRPF to be an organization with a limited, brutal purpose.
Similarly, the applicants argue that the Board erred in not qualifying the
principal applicant’s role in the CRPF as that of officer or soldier. Such a
determination would be crucial to a complicity analysis. Hence, the Board’s
silence and the absence of these two findings would constitute a material error
warranting the intervention of this Court. Due to these omissions, the Board’s
decision would be unjustified. Rather, the facts indicate that the principal
applicant was merely present and therefore not complicit in the crimes carried
out by the CRPF during his membership. Knowledge is also insufficient to apply
the exclusion under section 98 of the Act. Thereby, the Board would have further
erred in concluding that the principal applicant had the requisite shared
common purpose to establish complicity. This conclusion is believed to have
been made in complete disregard of the evidence: the principal applicant
testified that he protested against these crimes against humanity and would
talk to victims.
[10]
For
his part, the respondent argues that the Board’s finding of complicity is
reasonable, being supported by the evidence. Moreover, the respondent submits
that the qualification of the CRPF as a limited, brutal organization is not
necessary to support a finding of complicity, nor is a specific qualification
of the principal applicant’s position as that of officer or soldier.
I. Crimes against humanity
[11]
In
my opinion, the Board did not err in concluding that the principal applicant
had the requisite shared common purpose to establish complicity. The Board
correctly began its decision by describing the crimes against humanity
perpetrated by the CRPF, which the applicants do not deny. The Board provided a
summary of the documentary evidence depicting human rights violations and a
consistent pattern of violence as part of the CRPF’s regular operations during
the insurgency in India, contrary to the applicants’ view that the Board
qualified the CRPF as a legitimate organization which only occasionally carried
out crimes against humanity. The Board then explained how the principal applicant
collaborated in the commission of these crimes by summarizing the principal applicant’s
own description of his tasks.
II. Membership in the CRPF
[12]
The
Board was not required to qualify the CRPF as a limited, brutal organization in
order to support a finding of complicity, contrary to the applicants’
allegation. Rather, because the Board did not conclude that the CRPF was a
limited, brutal organization, it went on to explain how the principal applicant
personally and knowingly participated in the commission of crimes against
humanity (see Ramirez v. Canada (Minister of Employment and Immigration) (C.A.), [1992] 2 F.C. 306).
The Board did not apply a presumption of knowledge and therefore did not have
to make a finding as to the specific type of organization the CRPF qualified
as.
III. Personal and knowing
participation
[13]
Moreover,
the Board does not solely rely on the principal applicant’s presence in Punjab, where the insurgency
mostly took place, to support its finding of complicity. This presence is
coupled with a shared common purpose in the Board’s opinion, which allows for a
finding of complicity (Ramirez at page 327). The tasks carried out by
the principal applicant did not merely constitute passive acquiescence,
contrary to the applicants’ allegations. The Board summarized the tasks
performed by the principal applicant as a constable driver, as described by the
latter in his narrative and testimony. Hence, in executing his orders and
driving platoons to their destination, patrolling the villages, working at the
police station while others were tortured, and assisting his colleagues in
“doing their job”, the principal applicant was not only present when crimes
against humanity took place, but his actions facilitated the commission of such
crimes, constituting a form of active support: he admitted assisting colleagues
“do their job” (see Penate v. Canada (Minister of Employment and
Immigration) (T.D.), [1994] 2 F.C. 79 [Penate], and Ryivuze).
[14]
In
addition, the principal applicant admitted being aware of the atrocities
committed by the CRPF. However, he claimed he could not safely disassociate
himself from the organization and protested against the commission of crimes
against humanity. The Board rejects these allegations, finding the applicants
lack credibility. The applicants did not attack the Board’s findings of fact
nor credibility, neither in their memorandum nor at the hearing before me.
Nonetheless, it should be noted that the Board’s factual findings are owed
great deference. These findings are reasonable, being explained in the Board’s
decision and anchored in the evidence before it. Consequently, the Board
concluded that the principal applicant never tried to disassociate himself from
the CRPF, fighting to be reinstated and only leaving when he retired after 25
years of service. Also, it was within the Board’s power to disbelieve the principal
applicant’s allegation that he protested against the commission of these crimes
and consoled victims. Hence, the Board reasonably concluded that the principal applicant
was a member of a persecuting group, the CRPF, aware of the crimes committed by
this group, but that he did not try to prevent the occurrence of these crimes,
nor did he try to disengage himself. Instead, he actively lent his support by
performing tasks which facilitated the commission of crimes against humanity by
the CRPF. Therefore, a shared common purpose exists according to the case law,
since these crimes were not isolated incidents, but a regular part of the
CRPF’s operations during the insurgency (Penate and Ryivuze).
Thereby, the Board reasonably concluded that the principal applicant was
complicit, having the requisite shared common purpose, establishing his
personal and knowing participation (Ezokola).
IV. Factors in establishing
complicity
[15]
Furthermore,
the Board assessed the factors identified in Ryivuze to establish
complicity and considered them as a whole (Ezokola). The principal applicant
voluntarily joined an organization, which although not aimed at a limited
brutal purpose, regularly carried out crimes against humanity during the
insurgency movement in India, this period coinciding
with his membership in the CRPF. He admitted knowing of the perpetration of
these crimes, and remained in the organization for 25 years until he
retired, without ever attempting to leave, but rather fighting to remain a member.
The principal applicant’s position within the CRPF was accepted, as he defined,
as constable driver. The Board did not qualify his position as commander, nor
officer, nor consider him to have a leadership position, which is why the Board
does not apply any presumption of additional knowledge. Rather, it considered
the factors as a whole.
[16]
Therefore,
contrary to the applicants’ allegations, the Board did not merely rely on the principal
applicant’s knowledge to ground its finding of complicity: the Board reasonably
concluded, considering the evidence before it, that the principal applicant had
a shared common purpose with the CRPF. The Board’s decision is justified and
intelligible, falling within the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law” (Dunsmuir at para 47).
V. Lack of credibility
[17]
The applicants
do not attack the Board’s findings of fact and credibility, which are at the
heart of the decision. Since the Board does not believe the applicants’ story,
their claim would have been rejected, regardless of whether or not the
exclusion under section 98 of the Act applied.
* * * * * * * *
[18]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[19]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of the Immigration and Refugee Board determining that
the applicants were not Convention refugees or persons in need of protection
under sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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