Date: 20070601
Docket: IMM-6222-06
Citation: 2007 FC 583
Ottawa, Ontario, June 1, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
AKASH
DEEP SINGH MAAN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), for judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board) dated November
2, 2006, determining that Mr. Maan (the Respondent) was a Convention refugee.
[2]
Since the Respondent’s first language is
English and since Justice Martineau’s decision as well as the Board’s decision
are written in English, the Court has chosen to write the decision in English.
BACKGROUND
FACTS
[3]
The most relevant facts relating to the
present proceeding are as follows: On December
9, 2005, Justice Martineau in Canada (Minister of Citizenship and Immigration) v. Maan, [2005]
F.C.J. No. 2078 sent the within matter back to the same Board member with
directions, in accordance with Paragraph 18.1(3)(b) of the Federal Court
Act, R.S.C. 1985, c. F-7, to determine if there were
“serious reasons to consider” if the Respondent had committed acts that were
contemplated by the exclusion clause 1F of the Convention. Additionally, the
Board was to perform an analysis of availability of a duress defense and the
possible existence of an Internal Flight Alternative (IFA). Justice Martineau
was clear that this was not to be a new hearing, but rather to rectify the
errors of law present in the initial reasons. It is these supplementary
reasons, when read in conjunction with the original reasons, which are the
subject of this judicial review.
[4]
For ease of reference and context, I include
the brief factual background as set out by Justice Martineau in the initial
judicial review at paragraphs 2 -8 of Maan, above.
2. The Respondent is a citizen of India. On September 10, 2000, he
was requested by the militant group Babbar Khalsa (BK) to transport packages,
which would be handed to him by BK sympathizers, and to bring those packages to
his school. The Respondent testified that he believed the packages contained
drugs.
3 The Respondent alleged that his initial
refusal to comply with the request led to immediate threats to his life. In
response to these threats, the Respondent accepted the task of transporting the
packages, which he claims to have performed on five separate occasions.
4 The last time the Respondent
transported the packages was on January 10, 2001. On this day the Respondent
claimed to have been intercepted by the police, arrested and detained for four
days. During the detention he was tortured so that he would disclose to police
the identity of the persons with whom he had been collaborating.
5 Upon his release, the Respondent
claimed to have received medical attention for injuries sustained as a result
of the torture.
6 On July 10, 2001, the police came to his residence. He was taken to the police station where he was asked to
identify a person suspected of being a member of the BK group. He was detained
and tortured for three days before being released. Again, he was medically
treated for injuries.
7 On September 6, 2002, the Respondent
arrived in Canada on a student visa. He studied in Brampton, Ontario until
November 2003, at which time he proceeded to seek asylum.
- The Board found the Respondent
credible and concluded that he is a Convention refugee by virtue of
section 96 of the Act and a person in need of protection by virtue of
paragraphs 97(1)a) and b) of the Act. […]
[5]
Section 98 of the Act incorporates article 1F of the Convention into
domestic law. This provision reads as follows:
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98.
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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.
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1F. The provisions of this Convention shall not apply to any person with
respect to whom there are serious reasons for considering that:
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(a)
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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;
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(b)
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he has committed a serious non-political crime outside the country of
refuge prior to his admission to that country as a refugee;
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(c)
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he has been guilty of acts contrary to the purposes and principles of the
United Nations.
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98.
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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.
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1F. Les dispositions de cette Convention ne seront pas
applicables aux personnes dont on aura des raisons sérieuses de penser :
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(a)
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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 ;
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(b)
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Qu'elles ont commis un crime grave de droit commun en
dehors du pays d'accueil avant d'y être admises comme réfugiés;
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(c)
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Qu'elles se sont rendues coupables d'agissements
contraires aux buts et aux principes des Nations Unies.
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Board’s Decision,
Supplementary Reasons:
[6]
The Board addressed in seriatim the directions of Justice Martineau,
as set out in paragraph 25 of Maan above.
25 a) Apply the proper
test, as stated by the case law referred to in the present Reasons for Order,
in considering whether or not there are "serious reasons for
considering" that the Respondent has committed the acts contemplated by
the exclusion clause 1F of the Convention;
[7]
The Board re-iterated that they accept the Respondent’s credibility.
The Board accepted that the Respondent did in fact commit the crime of
transporting illegal drugs. However, the Board accepted that he did so under
duress, as his own life, and the life of his parents and brothers were in
jeopardy. The Board placed weight on the fact that the Respondent was only 17
years of age at the time when he was approached by Babbar Khalsa (BK) militants
to transport the illegal drugs.
25. b) Perform a
sufficient analysis concerning the nature of the BK to determine the
Respondent's degree of participation in and/or complicity with the
organization. While they will have to be adapted to the present situation, the
following factors have been identified by this Court in the past: (1) the
nature of the organization; (2) the method of recruitment; (3) the individual's
position/rank in the organization; (4) the individual's knowledge of the
organization's atrocities; (5) the length of time spent in the organization by
the individual; and, (6) the individual's opportunity to leave the organization
(see Ali v. Solicitor General of Canada, 2005 FC 1306, [2005] F.C.J. No. 1590
and cases cited herein);
[8]
The Board did not find that the Respondent held any rank within the
BK organization, which it found based on documentary evidence was a subversive
militant group. The Board found that the documentary evidence as to how the BK
recruited drug “mules” was consistent with the testimony of the Respondent.
The Board did not find any reason to believe the Respondent was complicit in
the organization, nor that he had any role other than being an involuntary drug
“mule”. The Board accepted that the Respondent had heard of the BK, but that
he had never directly or indirectly participated with them, other than his acts
under duress. The first encounter with the BK was in September, 2000 and there
were only four subsequent encounters, approximately one month apart until
January, 2001. The Board also accepted that the Respondent could not leave the
organization due to a fear for his life and the life of his family.
25. c) Specifically
address clauses 1F(a) and 1F(c) of the Convention;
[9]
The Board found that there were not “serious reasons for
considering” that the Respondent committed a crime, given the presence of
duress, and the lack of a mens rea, therefore the Convention exclusion
does not apply.
25. d) Determine whether
the acts admitted by the Respondent can be considered a serious non-political
crime within the meaning of clause 1F(b) of the Convention;
[10]
The Board accepted the testimony of the Respondent that he has not
committed a serious non-political crime within the meaning of the Convention.
The Board accepted that the Respondent had been tortured and was a victim of
regrettable circumstances.
25. e) The reassessment shall be made by
the Board without prejudice to the right of the Applicant to argue that the
defense of duress does not apply and/or that there is a viable IFA;
[11]
The Board was of the opinion the Minister’s representative sought to
conduct a de novo hearing, file additional evidence, and question the
Respondent on the issue of an IFA. The Board refused this request on the basis
that Justice Martineau’s order was that the clarifications required were to be
made on the basis of the existing Tribunal Record.
25. f) The Board shall
provide its supplementary reasons in writing to declare the Respondent to be a
Convention refugee, or to exclude him on the basis of Article 1F of the
Convention, and/or to find that he has a viable IFA, as the case may be.
[12]
The Board found there was no IFA available to the Respondent. The
Board concluded that the Respondent has met his burden of showing credible
evidence that his life and well-being are at risk in India and is a s. 96
Convention refugee. Additionally, the Board found that the Respondent would
face a risk to life, or to cruel or unusual treatment or punishment if returned
to India, contrary to s. 97 of the Act, and he should not be excluded under
1F.
ISSUES
[13]
The application raises the following two issues:
a)
Did the Board err in law by failing to consider the essential elements
of the defense of duress?
b)
Did the Board fail to consider the possibility of an internal flight
alternative?
[14]
For the reasons that follow, the answer to each question is
negative. Consequently, the application shall be dismissed.
ANALYSIS
Defense of Duress
[15]
The application of the defense of duress is whole fact based and
thus reviewable on a standard of patent unreasonableness. (Minister of
Citizenship and Immigration v. Hussain) 2002 F.C.T. 209.
[16]
Reliance on the defense of duress is subject to specific conditions
as set out by Chief Justice Lamer, at paragraph 62 in R. v. Hibbert,
[1995] 2 R.C.S. 973, (followed in R. v. Latimer, [2001] 1 R.C.S. 3,
2001, CSC 1, at paragraphs 32 and 33 and also in R. v. Ruzic, [2001] 1
R.C.S. 687, 2001 CSC 24, at paragraph 96), which states as follows:
[. . .] Furthermore, I believe
that the internal logic of the excuse-based defense, which has theoretical
underpinnings directly analogous to those that support the defense of necessity
(as set out in Perka, supra), suggests that the question of whether or
not a safe avenue of escape existed is to be determined according to an
objective standard. When considering the perceptions of a "reasonable
person", however, the personal circumstances of the accused are relevant
and important, and should be taken into account.
[17]
In order to rely on the defense of duress, a person must prove that
(1) there exists an urgent situation of clear and imminent peril, (2)
compliance with the law is demonstrably impossible, and (3) the harm inflicted is
less than the harm sought to be avoided. (R. v. Perka, [1984] 2 S.C.R.
232 at p. 248 ff.; Latimer, above at paragraphs 28 to 31). The burden
of proof lies on the party relying on the defense of duress and it is then up
to the Crown to disprove duress. (Ruzic above at paragraph 71).
[18]
The same principles apply with respect to exclusion and the defense
of duress in immigration matters (Ramirez v. Minister of Employment and
Immigration), [1992] 2 F.C. 306, 327 and 328 (C.A.); Kathiravel v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 882 (QL), 2003
CFPI 680, at paragraphs 45 to 47.)
[19]
The first element of the test requires proof that the accused
reasonably believe that the threat would be carried out if he did not commit
the crime and that there is a close temporal connection between threat and harm.
In other words, “the threat need not operate instantly, but must be a present
one in the sense that it creates an immediate pressure to act.” (Ruzic, above
paragraphs 71-72).
[20]
Secondly, the requirement that there be an alternative legal
solution implies that the person who relies on the defense of duress must prove
that he or she had no option but to break the law in order to avoid or prevent
harm. Otherwise the defense of duress is not available. Latimer, above
at paragraph 30 states as follows:
[. . .] [T]he requirement
involves a realistic appreciation of the alternatives open to a person; the
accused need not be placed in the last resort imaginable, but he must have no
reasonable legal alternative. If an alternative to breaking the law exists, the
defense of necessity on this aspect fails.
[21]
To meet the third part of the test, it must be established that the
harm avoided was greater than the harm inflicted in committing the crime under
duress.
[22]
The Applicant argues that the Board neither referred to nor applied
these fundamental elements of the defense of duress. Rather it based its
conclusion on purely subjective elements to find that the Respondent
transported illegal under duress. The Board placed too much weight on the fact the
Respondent was 17 years old. This is a subjective factor and it is not an assessment
of the threat from the point of view of the reasonable person in a similar
situation.
[23]
Moreover, the Applicant suggests that the evidence before the Board
provided no indication that there was a temporal proximity between the harm and
the crimes committed by the Respondent. He testified that he carried drugs five
different times between September 10, 2000 and January 10, 2001 based on a
relatively simple modus operandi: two to three days prior to a
planned transport, someone met him after school and gave him the necessary
instructions. While he testified that he was kidnapped after the first
delivery, he made no such allegations for the subsequent crimes he committed; the
Respondent’s behaviour was certainly not that of a reasonable person. A
reasonable person would have taken the appropriate measures to avoid repeating
the crimes. Furthermore, the Respondent had a legal alternative that of
reporting the first incident to the Indian police but he did not.
[24]
The Respondent submits that the Board applied the correct principles
of law in its conclusion that the respondent was neither a member of the BK nor
complicit to its illegal operations. It was not patently unreasonable for the
Board to find that the defense of duress was open to the Respondent in the
circumstances of the case. I am satisfied that the Board did not err in its
assessment of the tripartite test for the application of the defense of duress.
While I agree with the Applicant that the Board could have been explicit in its
supplementary reasons, more specifically with the availability of IFA, these
reasons have to be read in conjuncture with the first reasons. The Applicant
may disagree with the weight to be given to the evidence but it is not the role
of the court to interfere with the findings of facts made by the Board.
[25]
The Board found firstly that in light of his fear that the BK would
kidnap or kill him, there was a situation of clear and imminent danger. Secondly,
the Respondent had no reasonable legal alternative but to deliver the drugs for
the BK. He was not a member of the BK and never participated voluntarily in
their illegal activities and he had no IFA. Further, the Board
accepted his testimony that he was detained and tortured by the police on two
occasions in an attempt to have him admit to his participation in the BK
organization. It is unlikely that a reasonable person in the same situation
would have asked for the protection of the police.
[26]
Third, the harm he caused was not disproportionate to the harm he
avoided given that the consequences of refusing to act meant death to him and
his family at the hands of the BK. In light of the applicable standard of
review, it cannot be said that the decision is “clearly irrational” or that “it
is so flawed that no amount of crucial deference can justify letting it stand.”
Law Society of New Brusnwick v. Ryan, [2003] 1 S.C.R. p. 269-270.
Internal Flight Alternative:
[27]
While it is true that this Court gave specific directions to carry
out its re-determination of the Respondent’s refugee application on the basis
of the existing Tribunal Record only, the Applicant argues that the Board had
an obligation nevertheless to consider whether there was an IFA, since this
element forms part of the definition for person in need of protection.
(Subparagraph 97(1)(b)(ii) of the Act; Rasaratnam v. Canada (Minister of Employment
and Immigration), [1992] 1 C.F. 706, 710 (C.A.); Thirunavukkarasu v.
Canada (Minister of Employment and Immigration), [1994] 1 C.F. 589, 592 and
593 (C.A.).
[28]
The Applicant takes issue with the Board making but a passing
reference that the Respondent had proven the non-existence of an IFA.
[29]
The Applicant argues that the Board’s conclusion was not supported
by the evidence. In particular, the evidence showed that citizens of India
enjoy freedom of movement and have the right to settle anywhere in the
country. Also, there is no control of the identification of individuals and
new arrivals do not have to register to settle anywhere in India. Moreover,
individuals who are of no interest to Indian authorities generally settle
easily in other parts of India.
[30]
Further, the Applicant argues that the evidence before the Board
supported the possibility of an IFA as the Respondent testified that the Indian
police authorities did not lay any charges against him; his family had
relocated to Ramidi, the village of his maternal grandparents and that his
brothers presently attend school there; and the Respondent’s father returns
regularly to their village to oversee the family farm.
[31]
The Respondent’s allegation that he is afraid that the BK would find
him wherever he goes in India, a country with over one billion inhabitants is
hardly credible. Not only have the terrorist groups ceased their activities in
the Punjab but the limited size of the BK in India makes it unlikely that the
organization could track him down.
[32]
Under these circumstances, the Applicant is of the view that
the Board ought to have explained why it considered that the Respondent had
established that there was no possibility of an IFA.
[33]
First, while it is true that the Board did
not elaborate in the supplementary reasons for decision why an IFA was not
possible, it turned its mind to the question in its first decision dated
March 8, 2005 and concluded then, as it does now, that the Respondent did not
have a viable IFA. The following passage is relevant:
e) In
the Minister’s representations, questions were addressed to the claimant asking
why he had not moved his family to another location within India, therefore finding an Internal Flight
Alternative (IFA) to the situation which prevailed. The tribunal finds that the
claimant who was seventeen and eighteen when the events are said to have
occurred could not, in a paternalistic society as is India, demand that his father move his family to a place, as suggested,
such as New Delhi. In the Zhi
Bing Ye decision, the Federal Court of Appeal ruled, in part, the
following: “We may well wonder whether this judgment does not involve the
imposition of Western concepts on a subtle oriental totalitarianism, and
whether it is correct to interpret Chinese law enforcement in the light of the
more linear Western model, [. . .].” The claimant’s response to the questions
addressed was that his father could not move to New
Delhi, leaving his farm as only livelihood behind,
with no revenue for the family.
[. . .]
As pertains to a
possible IFA for this claimant in India, the tribunal accepts arguments that
the information contained in exhibit R-10, where it is shown that persons who
have had problems with police in other parts of India may be the subject of verification in other parts of India. He was able to obtain a passport
because he is not a “wanted” person in India. The police would like him to identify suspected felons of the BK.
The tribunal does not believe that this hoped-for cooperation by police would
hamper the issuance of a passport by state authorities. Though the details in
R-10 do not specifically address the claimant’s situation, the relevancy is
appreciated by this tribunal. Moreover, the claimant’s young age may well have
contributed to the decision, by the claimant’s father, to have his son flee to
Canada instead of fleeing to another part of India. Once the father or the family had decided that the eldest son had
to leave home in order to seek safety elsewhere, Canada represented a safe haven for all concerned. The evidence shows that
the claimant cannot reasonably find an IFA in India.
[34]
Taking into account the fact that the reassessment
was to be conducted solely on the basis of the existing record, I am satisfied
that the Board did turn its mind to the IFA and correctly concluded in its
earlier decision that there was no reasonable IFA open to the Respondent. In
my opinion, while not a perfect analysis, the Applicant has failed to show that
the Board’s decision with respect to the IFA was patently unreasonable. Once
again, there is nothing “clearly irrational or evidently not in accordance with
reason”. Therefore, intervention of this Court would not be justified in the
present application.
[35]
For these reasons, the application for
judicial review is dismissed.
JUDGMENT
[36] The application
for judicial review is dismissed.
“Danièle
Tremblay-Lamer”
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