Date:
20110609
Docket:
IMM-3921-10
Citation:
2011 FC 666
Ottawa, Ontario, June 9, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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MASOUMEH
POURJAMALIAGHDAM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms.
Masoumeh Pourjamaliaghdam, a citizen of Iran, arrived in Canada in 2004. Two years later, she applied for refugee protection on the basis that she
feared reprisals in Iran for having served in the government of Shah Mohammad
Reza Pahlavi during the 1970s.
[2]
The
Minister of Public Safety and Emergency Preparedness opposed Ms.
Pourjamaliaghdam’s application arguing that she was excluded from refugee
protection based on serious reasons for considering that she had committed a
crime against humanity, or had been guilty of acts contrary to the purposes and
principles of the United Nations (Immigration and Refugee Protection Act
[IRPA], SC 2001, c 27, s 98, incorporating Articles 1F(a) and (c)
of the United Nations Convention Relating to the Status of Refugees),
July 28, 1951, [1969] Can TS No 6) (see Annex for statutory provisions and
international instruments cited). A panel of the Immigration and Refugee Board found
that Ms. Pourjamaliaghdam was excluded because there were serious reasons for
considering that she had been complicit in crimes against humanity (that is,
under Article 1F(a) of the Convention).
[3]
Ms.
Pourjamaliaghdam asks me to overturn the Board’s decision on three grounds: (1)
the Board applied the wrong legal framework and standard of proof; (2) the
Board failed to consider the identity of the victims of the crimes in which she
was alleged to be complicit; and (3) the Board made erroneous findings of fact.
[4]
I
agree in part with Ms. Pourjamaliaghdam on the first point. In my view, while
the Board identified the correct legal approach, it made errors in applying it.
Therefore, I must allow this application for judicial review and order a new
hearing before a different panel. I disagree with Ms. Pourjamaliaghdam’s second
argument and, for the benefit of the next panel, deal with it briefly. I do not
need to address Ms. Pourjamaliaghdam’s third argument given that a new hearing
is required; the next panel will have to find the facts afresh.
[5]
The
issues are these:
1. Did
the Board apply the wrong legal framework and standard of proof? and
2. Did
the Board fail to consider the identity of the victims of the crimes in which
she was alleged to be complicit?
II. Factual
Background
[6]
Beginning
in 1973, Ms. Pourjamaliaghdam worked for the army as a telephone receptionist
in a military hospital. Around 1976, she began informing on behalf of the
Shah’s secret police, known as SAVAK. She was asked to make audio tapes of any telephone
conversations made to or from the military hospital that were suspicious or
overtly critical of the Shah. She performed that role until the revolution of
the late 1970s. Thereafter, she says, she went into hiding to avoid
repercussions from her association with the Shah’s regime. Finally, in 2004 she
left Iran for Canada, where her children lived.
III. The Board’s
Decision
[7]
The
Board began its analysis of the issue of exclusion by setting out a two-part
test. Under the first branch, the Board had to decide whether the organization
to which Ms. Pourjamaliaghdam belonged had committed crimes against humanity or
acts contrary to the purposes and principles of the United Nations. Under the
second branch, the Board had to decide whether Ms. Pourjamaliaghdam had been
complicit in those crimes or acts.
[8]
Ms.
Pourjamaliaghdam conceded that SAVAK had been involved in crimes against
humanity. The Board outlined some of them:
• SAVAK
controlled the notorious Evin Prison in northern Tehran where thousands of prisoners
were kept in deplorable conditions, tortured and executed;
• SAVAK
was known, even in the 1970s, to have tortured detainees under interrogation.
[9]
Given
that it was clear to the Board that SAVAK had committed crimes against
humanity, it went on to consider whether Ms. Pourjamaliaghdam had been
complicit in those crimes. There was no allegation that she had been directly
involved in them in any way.
[10]
The
Board defined complicity as involving “a common purpose, a personal and knowing
participation” in the organization’s acts. It includes a person who, being
aware of the acts being committed does not try to stop them or to dissociate
himself or herself from the organization at the earliest opportunity but,
rather, continues to participate actively in the organization. The concept of
complicity, therefore, includes an element of mens rea, or guilty mind.
Where the organization’s main objective is to commit crimes against humanity,
or it exists to achieve a limited, brutal purpose, mere membership in the
organization may be enough to show complicity (citing Thomas v Canada (Minister of Citizenship and Immigration), 2007 FC 838, at paras 22-23). In
fact, membership in that type of organization raises a presumption of
complicity.
[11]
With
this statement of general principles, the Board went on to consider whether
SAVAK was an organization with a limited, brutal purpose. The Board concluded
that SAVAK, as a secret police organization, executed a mandate to suppress all
political opposition and defend the security of the state, using all necessary
means, including torture, to do so. As such, it was an organization with a
limited, brutal purpose during the time Ms. Pourjamaliaghdam worked as an
informant. She was presumed, therefore, to be complicit in SAVAK’s crimes.
[12]
The
Board then went on to examine whether Ms. Pourjamaliaghdam could rebut the
presumption of complicity. It considered six criteria of complicity as set out
in Ryivuze v Canada (Minister of Citizenship and Immigration), 2007 FC
134, as follows:
(a) The nature
of the organization
[13]
SAVAK
was an organization with a limited, brutal purpose.
(b) The
method of recruitment
[14]
Ms.
Pourjamaliaghdam began working at the hospital as a civilian clerk employed by
the army as a telephone receptionist. When she was asked to be an informant,
she was told that she had a duty to protect her country. Her role would be to
listen to telephone conversations at the hospital and report those who
denounced the Shah.
[15]
The
Board found that Ms. Pourjamaliaghdam had essentially volunteered to become an
informant to serve her country.
(c) Position/rank
in the organization
[16]
Ms.
Pourjamaliaghdam was employed in a clerical position by the army but, as an
informant, was supervised by the Minister of Intelligence. She turned over
tapes of conversations to the Chief of Intelligence for SAVAK at her place of
employment. She did not know what use was made of them.
(d) Knowledge
of the organization’s atrocities
[17]
Ms.
Pourjamaliaghdam claimed to be unaware that SAVAK was involved in crimes
against humanity, including torture. She did not know about Evin Prison. She
did not watch television very much or read newspapers, so she had no knowledge
of demonstrations by, or arrests of, those opposing the Shah.
[18]
The
Board found that SAVAK’s actions were widely known and that it was unlikely
that Ms. Pourjamaliaghdam was unaware of them. It concluded that she knew what
happened to opponents of the Shah and that it was SAVAK that dealt with them.
(e) The
length of time in the organization
[19]
The
Board found that Ms. Pourjamaliaghdam had been involved with SAVAK for a
considerable period of time – two to three years.
(f) The
opportunity to leave the organization
[20]
The
Board found that Ms. Pourjamaliaghdam left SAVAK a year after the revolution,
at the request of her husband, who no longer wanted her to work outside the
home. She did not make any earlier attempt to dissociate herself from the
organization.
[21]
Based
on the evidence relating to the above six criteria, the Board found that Ms.
Pourjamaliaghdam had not rebutted the presumption of complicity arising from
her membership in SAVAK. Therefore, it concluded that she was an accomplice to
crimes against humanity and excluded from refugee protection under Article 1F(a)
of the Convention.
IV. Issue One – Did the Board apply the wrong legal framework and
standard of proof?
[22]
Ms.
Pourjamaliaghdam argues that the Canadian approach to Article 1F(a), the
one adopted by the Board here, should no longer be followed in the light of a
recent decision of the Supreme Court of the United Kingdom [UKSC] criticizing
it: R (on the application of JS (Sri Lanka)) v Secretary of State for the
Home Department, [2010] UKSC 15, [2010] All ER (D) 151 (Mar) [JS].
In particular, the UKSC held it was an error to find complicity merely on proof
of membership in an organization with a limited, brutal purpose. The New
Zealand Supreme Court [NZSC] has recently adopted the same approach as the
UKSC: The Attorney General (Minister of Immigration) v Tamil X and ANOR SC, [2010] NZSC 107 [Tamil X].
[23]
Ms.
Pourjamaliaghdam submits that this Court should follow the UKSC and NZSC
approach, given that those courts were relying on an interpretation of the Rome
Statute of the International Criminal Court, UN Doc A/CONF 183/9 (1998), which
defines crimes against humanity, and which the Board purported to apply here.
[24]
Ms.
Pourjamaliaghdam also submits that the Board erred in the standard of proof it
applied. She maintains that the words “serious reasons for considering” were
found both by the UKSC and the NZSC, in the cases cited above, to establish a
standard higher than “reasonable grounds to believe”, while Canadian courts
have found them to be synonymous. The “serious reasons” standard in IRPA
derives from the Refugee Convention.
[25]
To
address Ms. Pourjamaliaghdam’s submissions, it is important to understand the decisions
rendered by the UKSC and the NZSC and the criticisms those courts made of the
Canadian approach. I must also discuss the evolution of the case law in Canada to make clear what the differences between those approaches are.
(a) The UK and NZ approach
[26]
In
JS, above, Lord Brown, in the leading judgment of the UKSC, noted that
the exclusion clause in Article 1F(a) has serious consequences for
refugee applicants and must, therefore, “be interpreted restrictively and used
cautiously” (at para 2). In particular, something more than membership in an
organization committing crimes against humanity must be shown. The question is,
“what more than mere membership . . . must be established before an individual
is himself personally to be regarded as a war criminal?” (at para 1).
[27]
Lord
Brown reviewed the provisions of the Rome Statute, UNHCR publications,
case law from the International Criminal Tribunal for the former Yugoslavia
(ICTY), and previous UK decisions on the application of Article 1F(a). He
also considered the decision of the Canadian Federal Court of Appeal in Ramirez
v Canada (Minister of Employment and Immigration), [1992] 2 FC 306, [1992]
FCJ No 109 (CA) (QL), where the concept of an organization with a “limited, brutal
purpose” was born. There, Justice Mark MacGuigan stated that it “seem[ed] apparent,
however, that where an organization is principally directed to a limited,
brutal purpose, such as a secret police activity, mere membership may by
necessity involve personal and knowing participation in persecutorial acts” (at
para 16).
[28]
Lord
Brown suggested, however, that the better approach, rather than be “deflected
into first attempting some such sub-categorisation of the organisation”, was to
focus on the real, determinative factors in deciding whether a person fell
within the exclusion (at para 30). He set out the following as being the proper
factors to consider:
(i)
the
nature and (potentially of some importance) the size of the organisation and
particularly that part of it with which the asylum-seeker was himself most
directly concerned;
(ii)
whether
and, if so, by whom the organisation was proscribed;
(iii)
how
the asylum-seeker came to be recruited;
(iv)
the
length of time he remained in the organisation and what, if any, opportunities
he had to leave it;
(v) his
position, rank, standing and influence in the organisation;
(vi) his
knowledge of the organisation’s war crimes activities; and
(vii) his
own personal involvement and role in the organisation including particularly
whatever contribution he made towards the commission of war crimes.
[29]
While
Lord Brown thought it best to avoid looking for a presumption of exclusion (as
Canadian law seems to promote), he acknowledged that serious reasons to
consider involvement in crimes against humanity will “almost certainly” arise
in relation to a person who was an active member of an organization devoted
exclusively to terrorism (at para 31). Still, he stressed that the nature of
the organization is only one of the relevant factors to consider.
[30]
Lord
Brown then set out what he believed to be the correct test:
I would hold an accused disqualified under article
1F if there are serious reasons for considering him voluntarily to have
contributed in a significant way to the organisation’s ability to pursue its
purpose of committing war crimes, aware that his assistance will in fact
further that purpose (at para 38).
[31]
Regarding
the standard of proof, Lord Brown found that the expression “serious reasons
for considering” imports a higher standard than “reasonable grounds for
suspecting”. The word “considering” is roughly equivalent to “believing” (at
para 39).
[32]
In
Tamil X, above, Lord McGrath for the NZSC referred to a series of
Canadian cases from Ramirez, above, to Mugesera v Canada (Minister of
Citizenship and Immigration), 2005 SCC 40. He then expressed his agreement
with the reasoning of Lord Brown in JS, above, noting that he (and Lord
Hope in a concurring judgment) had “emphasised the importance of the facts of
each case and of evidence of actual involvement of the claimant, rather than an
assumption of it derived from membership of the organisation perpetrating the
crimes” (at para 68). In a statement intended to promote uniformity in the
interpretation of international refugee law, Lord McGrath suggested that:
Refugee status decision-makers should adopt the same
approach to the application of joint enterprise liability principles when
ascertaining if there are serious reasons to consider that a claimant seeking
recognition of refugee status has committed a crime or an act within art 1F
through being complicit in such crimes or acts perpetrated by others. That
approach fully reflects the principle that those who contribute significantly
to the commission of an international crime with the stipulated intention,
although not direct perpetrators of it, are personally responsible for the
crime. This principle is now expressed in arts 25 and 30 of the Rome Statute
and was earlier well established in customary international law. Its
application recognises the importance of domestic courts endeavouring to
develop and maintain a common approach to the meaning of the language of an
international instrument which is given effect as domestic law in numerous
jurisdictions of state parties (at para 70).
[33]
Regarding
the standard of proof, Justice McGrath also found that “serious reasons to
consider” involves more than mere suspicion (at para 39). It is interesting to
note, however, that in New Zealand the refugee claimant has the responsibility to
establish that he or she is not excluded by Article 1F (at para 43).
(b) Canadian
case law on complicity and international crimes
[34]
In
the seminal case of Ramirez, above, Justice Mark MacGuigan made clear
that the burden falls on the party asserting the exclusionary rule – namely,
the government – to prove that there are “serious reasons for considering” that
the claimant was complicit in international crimes (Ramirez, at para
10). “Serious reasons for considering” creates a standard that is lower than
the balance of probabilities and is roughly equivalent to “reasonable grounds
to believe” (at para 6).
[35]
For
exclusion, the government must generally present evidence that there was
“personal and knowing participation” in international crimes by the claimant (at
para 15). Each case must “be decided in relation to the particular facts” (at
para 23).
[36]
Ramirez
made
clear that mere membership in an organization known to commit crimes against
humanity is generally not sufficient to justify exclusion (at para 16).
However, Justice MacGuigan also observed that “where an organization is
principally directed to a limited brutal purpose, such as a secret police
activity, mere membership may by necessity involve personal and knowing
participation in persecutorial acts” (at para 16).
[37]
Subsequent
cases have elaborated on, but have not substantially departed from, these basic
ideas.
[38]
The
case law recognizes that complicity can take two forms. The first involves the
actual furthering of international crimes by the claimant (e.g. aiding
and abetting). The second involves “complicity by association” (Sivakumar v
Canada (Minister of Employment and Immigration), [1994] 1 FC 433, [1993]
FCJ No 1145 (CA) (QL), at para 9). Complicity by association means that
“individuals may be rendered responsible for the acts of others because of
their close association with the principal actors” (Sivakumar, at para
9; Teganya v Canada (Minister of Citizenship and Immigration), 2006 FC
590 at para 12).
[39]
The
cases consistently confirm that mere membership in an organization that commits
crimes against humanity does not justify exclusion from refugee protection (Sivakumar,
at para 13; Moreno v Canada (Minister of Employment and
Immigration), [1994] 1 FC 298, [1993] FCJ No 912 (CA)(QL), at
para 45; Thomas, above, at para 23). Still, the question whether the claimant was a
member of an organization known to commit crimes against humanity will often
arise in exclusion cases. But the rules relating to members also apply to
non-members. It is better, therefore, “to speak in terms of participation in
the group’s activities than of membership in the group” (Harb v Canada (Minister of Citizenship and Immigration), 2003 FCA 39, at para 19).
Accordingly, the fact that the person was not, strictly speaking, a “member”
does not necessarily mean that the person was not complicit in the group’s
crimes (Harb, at para 17).
[40]
The
further the claimant is from those who direct the organization, the less likely
it is that he or she will be found to be complicit in its crimes (Moreno,
above, at para 53). Similarly, the case for complicity “is stronger if the
individual member . . . holds a position of importance in the organization” (Sivakumar,
at para 10, Thomas, at para 26). Again, each case must be decided
according to the facts (Bazargan v Canada (Minister of Citizenship and
Immigration) (1996), 205 NR 252, 67 ACWS (3d) 132 (FCA), at para 12).
[41]
Justice
MacGuigan’s statement about organizations with a “limited, brutal purpose” has
been recognized as an exception to the general rule that membership is not
sufficient proof of complicity (Sivakumar, at para 13; El-Kachi v
Canada (Minister of Citizenship and Immigration), 2002 FCT 403 at para
36). In respect of that kind of organization, proof of membership may be
sufficient to find complicity and, therefore, may justify exclusion from
refugee protection (Thomas, at para 23). Membership in that kind of
group creates a rebuttable presumption “which may result in a finding of
complicity in the absence of any further evidence other than membership” (Thomas,
at para 24, citing Yogo v Canada (Minister of Citizenship and Immigration),
2001 FCT 390).
[42]
The
presumption of complicity is also an exception to the usual burden of proof in
exclusion cases. In the “normal course, the Minister bears the onus of establishing
the requisite elements of complicity” (Oberlander v Canada (Attorney General), 2009 FCA 330, at para 20). However, where the presumption
applies, the burden shifts to the claimant to present evidence of a lack of
complicity. The
presumption can be rebutted by evidence of a lack of knowledge of the
organization’s purpose or an absence of direct or indirect involvement in the
group’s activities (Oberlander, at para 18).
[43]
The
effect of the presumption is to lighten the onus on the Minister. It is easier
to conclude that the person knowingly participated in the activities of a group
that is singularly devoted to crimes against humanity where the evidence
establishes that he or she was a member of that group (Bazargan, above, at
para 10; Harb, above, at para 19).
[44]
However, even
where the presumption applies, the Board should review the evidence to
determine whether the presumption has been rebutted and, in doing so, should
consider other relevant factors (Thomas, above, at para 25). Those
factors are the ones reviewed by the Board in the case at hand:
1. The Nature of the Organization
2. The Method of Recruitment
3. Position/rank within the
Organization
4. Length of Time in the
Organization
5. The Opportunity to Leave the
Organization
6. Knowledge of the Organization’s Atrocities
[45]
In summary,
in most cases, the burden of proof falls on the Minister to show that there are
serious reasons for considering that the claimant was complicit in
international crimes. The evidence must show personal and knowing participation
in the activities of an organization known to commit crimes against humanity.
Proof of membership in the group is usually insufficient to justify exclusion
from refugee protection. Each case must be decided in relation to the
particular facts. As an exception to the general rules, in some cases,
complicity can be presumed on the basis of the claimant’s membership in a group
with a limited, brutal purpose. In those circumstances, the burden falls to the
claimant to present evidence of a lack of knowledge or involvement in the
group’s crimes. The decision-maker must then consider the remaining evidence
and factors in deciding whether the claimant was, indeed, complicit in the
commission of international crimes.
(c) Can
the approaches be reconciled?
[46]
Ms.
Pourjamaliaghdam argues that the kind of two-step approach the Board applied has
been criticized by the highest courts in the United Kingdom and New Zealand, both of which were interpreting the same international instruments that apply
to her application, and that this Court should bring Canadian law into line
with the approach taken by those courts.
[47]
No
doubt, as Justice McGrath observed, uniformity in decision-making by refugee
law judges and adjudicators is desirable. International legal measures aimed at
protecting vulnerable persons should have consistent application and
interpretation across states parties. At the same time, it may be unrealistic
to expect nations with different legal systems and cultures to achieve
identical results.
[48]
In
my view, the differences between Canadian law and the UKSC and NZSC approach are
slight. Regarding the standard of proof, in Canada, “serious grounds to
consider” has been found to be close to “reasonable grounds to believe”, which
corresponds with Lord Brown’s articulation of the appropriate standard. The
NZSC’s approach is the same (at para 39). In fact, Justice McGrath found that
the standard is higher than suspicion but “[b]eyond this, it is a mistake to
try to paraphrase the straightforward language of the Convention” (at para 39,
citing Sedley LJ in Al-Sirri v Secretary of State for the Home Department,
[2009] EWCA Civ 222, at para 33). This is similar to Justice MacGuigan’s
statement in Ramirez that “‘[s]erious reasons for considering’
is the Convention phrase and is intelligible on its own” (at para 6). There is,
therefore, no difference between Canadian law, on the one hand, and UK and NZ law, on the other with respect to the applicable standard of proof.
[49]
In
terms of the analysis of complicity, I agree with the UKSC and NZSC that one
should begin with the Rome Statute’s definition of individual criminal
responsibility. Article 1F(a) of the Refugee Convention specifically
provides that the definition of a crime against humanity should be taken from
“international instruments drawn up to make provision in respect of such
crimes”, which includes the Rome Statute, particularly Article 25, which
states:
3. In accordance with
this Statute, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime,
whether as an individual, jointly with another or through another person,
regardless of whether that other person is criminally responsible;
(b) Orders, solicits or
induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of
facilitating the commission of such a crime, aids, abets or otherwise assists
in its commission, including providing the means for its commission;
(d) In any other way
contributes to the commission or attempted commission of such a crime by a
group of persons acting with a common purpose. Such contribution shall be
intentional and shall either:
(i) Be made with the aim
of furthering the criminal activity or criminal purpose of the group, where
such activity or purpose involves the commission of a crime within the
jurisdiction of the Court; or
(ii) Be made in the
knowledge of the intention of the group to commit the crime.
[50]
The
Rome Statute does not address membership in a group at all. The closest
reference is in subparagraph 3(d), which speaks of contributing to crimes
committed by a group, either by actually furthering those crimes or with knowledge
of the group’s intentions. In my view, knowingly contributing to a group’s crime
is comparable to the Ramirez, above, requirement of personal and knowing
participation. In other words, the main thrust of Canadian law on complicity is
consistent with the Rome Statute.
[51]
The
exception noted in Ramirez, which grew into a presumption in later cases,
is a limited departure from the general proposition that the burden lies on the
government to prove exclusion with evidence of knowing participation. As I
noted earlier, even Lord Brown recognized that there may be situations where
evidence of a claimant’s close association with a particularly violent group
will speak for itself, justifying a conclusion of complicity on its own. I
believe that Justice MacGuigan’s observation was of the same nature – in some
cases, it will simply be self-evident that the person, being an active member
of such a group, was a knowing participant in its crimes.
[52]
Accordingly,
in most cases, the analysis required by Canadian jurisprudence is virtually
identical to that set out by Lord Brown. True, in some cases, the Minister may
only have to show membership in a group with a limited, brutal purpose. But those
cases are the exception and, even there, the Board will have to consider the
remaining evidence and all the relevant factors in deciding whether there are,
in fact, serious reasons for considering that the person has committed crimes
against humanity.
[53]
I
would also note that, while the Minister is entitled to persuade the Board that
the presumption should apply in a given case, the Board is by no means bound to
frame its analysis that way. In fact, unless it is fairly clear that the presumption
applies based on evidence of the nature of the group and the person’s active
membership in it, the better approach would be conduct the usual form of
analysis. Otherwise, the Board may end up spending an inordinate amount of time
analyzing what turns out to be a non-issue. As mentioned, membership in an
organization that commits crimes is normally not enough to justify exclusion.
Therefore, it makes little sense to spend much time considering whether the
person was, in fact, a member of such a group. To do so would be to concentrate
unduly on a narrow exception to the conventional approach rather than analyzing
the real issues. As Justice Robert Décary observed, “it is important not to
turn what is actually a mere factual presumption into a legal condition” (Bazargan,
above, at para 10).
[54]
I
also agree with Justice Barbara Reed’s observation that “[l]abels can block
analysis”. She went on to state “[i]f one is going to conclude that membership
in, or close association with, a group automatically leads to a conclusion of
complicity in crimes against humanity . . . the evidence concerning the
characterization must be free from doubt” (Canada (Minister of Citizenship
and Immigration) v Hajialikhani, [1999] 1 FC 181, [1998] FCJ No 1464 (TD)
(QL), at para 24).
[55]
I
do not, however, see any unfairness inherent in the presumption of complicity, or
in the evidentiary burden it places on claimants. In those situations where it
applies, the evidence capable of rebutting the presumption is likely to be in
the claimant’s possession in any case.
[56]
In
conclusion, the Canadian approach, while not identical to that laid out by Lord
Brown, is very similar and, in practice, likely to yield the same results. As
for the NZSC approach, I would note that it is more generous to refugee
claimants to shift the evidentiary burden only on proof of membership in a
group dedicated to committing crimes against humanity than to place the burden
on all claimants to prove an absence of complicity throughout.
[57]
Accordingly,
I find there to be no compelling reason to bring Canadian law into precise
alignment with the authorities cited by Ms. Pourjamaliaghdam from other jurisdictions.
(d) Application
to this case
[58]
Here,
the Board found that Ms. Pourjamaliaghdam should be presumed complicit in the
crimes committed by SAVAK given her role as an informant. It then went on to
consider whether she had rebutted that presumption with evidence falling under
the various relevant categories.
[59]
However,
the Board did not make any specific finding that Ms. Pourjamaliaghdam was a
member of SAVAK. The Board applied the presumption based on the fact that Ms.
Pourjamaliaghdam was an informant for the organization. As discussed above, the
presumption of complicity is an exception to the general rule that proof of
membership is not enough to show complicity in an organization’s intentional
crimes. Without proof of membership, the presumption has no application.
[60]
The
word “member” has often been given a broad definition, but it is still
important for the evidence to be analyzed to determine whether the person’s
association with the group is sufficiently close so as to justify a presumption
of knowing participation in the group’s crimes. Membership, in this context,
requires “the existence of an institutional link between the organization and
the person, accompanied by more than nominal commitment to the organization’s
activities” (Harb, above, at para 39). Further, I agree with Justice
Richard Mosley that “an unrestricted and broad definition is not a license to
classify anyone who has had any dealings with a terrorist organization as a
member of the group” (Toronto Coalition to Stop the War v Canada (Minister of Public Safety and Emergency Preparedness, 2010 FC 957).
[61]
In
this case, the Board may well have been persuaded that the evidence relating to
Ms. Pourjamaliaghdam’s association with SAVAK met the test of “membership”. But
it made no specific finding on the point. Further, while it reviewed the
evidence relating to the various factors to be considered, it did so with an
eye to evidence of non-complicity in order to determine whether Ms.
Pourjamaliaghdam had rebutted the presumption. This is a different exercise
than deciding whether the Minister had made out a case for exclusion based on
membership. Its approach amounted to an error of law.
[62]
Accordingly,
I must grant this application for judicial review on that basis.
V. Issue
Two – Did the Board fail to consider the identity of the victims of the crimes
in which she was alleged to be complicit?
[63]
Ms.
Pourjamaliaghdam argues that the evidence showed that the telephone
conversations she recorded involved military personnel, not civilians. Since a
crime against humanity is defined as a crime against civilians, she maintains
that the Board erred in finding that she was complicit in international crimes.
[64]
However,
this argument was rejected in Harb, above. The Federal Court of Appeal
stated that “if the organization persecutes the civilian population the fact
that the appellant himself persecuted only the military population does not
mean that he will escape the exclusion, if he is an accomplice by association
as well” (at para 11).
VI. Conclusion and Disposition
[65]
In
my view, the Board erred in law by applying the presumption of complicity in
the absence of evidence that Ms. Pourjamaliaghdam was a member of SAVAK. I
must, therefore, allow this application for judicial review.
[66]
Counsel
for Ms. Pourjamaliaghdam proposed the following question of general importance
for certification:
In light of the decision of JS (Sri Lanka) v Secretary of State for the Home Department, is it an error to presume a
person complicit in crimes against humanity based on membership in an
organization with a limited and brutal purpose?
[67]
Counsel
for the Minister opposes certification of the question on the facts of this
case, given that the Board considered all of the relevant factors, not just the
presumption. However, the Board considered those factors in determining whether
the presumption was rebutted. In other words, it was looking for evidence of
non-complicity, not evidence supporting the Minister’s case for exclusion. It
is not clear, therefore, that the Board would have come to the same conclusion
if it had not proceeded as it did. Further, in light of my analysis of the case
law and my finding that the Board erred by applying the presumption in the
absence of a finding of membership, I feel it is appropriate to state the proposed
question.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2.
The
following question general importance is stated:
In light of the decision of JS
(Sri Lanka) v Secretary of State for the Home Department, is it an error to
presume a person complicit in crimes against humanity based on membership in an
organization with a limited and brutal purpose?
“James
W. O’Reilly”
Annex
|
Immigration
and Refugee Protection Act, SC 2001, c 27
Exclusion
— Refugee Convention
98.
A person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention refugee or a person in need of protection.
Article
1 of the United Nations Convention Relating to the Status of Refugees
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;
…
(c) He has been guilty
of acts contrary to the purposes and principles of the United Nations.
|
Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Exclusion
par application de la Convention sur les réfugiés
98. La personne visée aux sections E ou F de l’article premier de la
Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne
à protéger.
Article
1 de la Convention des Nations Unies relative au statut des réfugiés
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.
[…]
c) Qu'elles se sont
rendues coupables d'agissements contraires aux buts et aux principes des
Nations Unies.
|
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