A-400-95
CORAM: MARCEAU
J.A.
DÉCARY J.A.
CHEVALIER
D.J.A.
BETWEEN:
MINISTER OF
CITIZENSHIP AND IMMIGRATION,
Appellant,
AND:
MOHAMMAD
HASSAN BAZARGAN,
Respondent.
REASONS
FOR JUDGMENT OF THE COURT
(Delivered
from the bench at Montréal
on
Wednesday, September 18, 1996.)
DÉCARY J.A.
The Immigration and Refugee Board
(Convention Refugee Determination Division) (hereinafter “the Board”) found
that the respondent was a refugee within the meaning of subsection 2(1) of the Immigration
Act. The Board further found that because of the positions the respondent
had held in Iran under Shah Reza’s rule, there were serious reasons for
considering that he had been guilty of acts contrary to the purposes and
principles of the United Nations and that, in light of Article 1F(c) of the United
Nations Convention Relating to the Status of Refugees[1]
(“the Convention”), he therefore could not avail himself of the protection
conferred by the Convention.
The second part of the decision, that
is, the part concerning what is known as the exclusion clause, was challenged
by an application for judicial review made to the Trial Division of this Court,
which allowed the application. Hence the appeal to us.
The facts are relatively simple and
largely undisputed, which is unusual in a case of this nature. The respondent
joined the Iranian national police in 1960 and pursued his career there until
1980. Between 1960 and 1977, he climbed the ranks of the military hierarchy
and became a colonel. From 1974 to 1977, he worked in Tehran as the officer in
charge of liaison between the police forces and SAVAK.[2]
SAVAK, from which he had received some of his training, was an internal
security agency under the Shah’s personal authority. During that period, the
respondent was in charge of the network for exchanging classified information
between the police forces and SAVAK; it has been established that he was
appointed to that position within the Iranian police because of his knowledge
of intelligence, espionage and counterespionage. In 1977, the respondent, whom
the Shah was about to make a general, became the chief of the police forces in
Hormozgan province, which is strategically located in southwestern Iran on the
Persian Gulf; he held that position until the fall of the monarchist regime in
1979. According to his own testimony, as chief of the police forces for the
said province he collaborated with the head of SAVAK for the province. It has
been established that the respondent was never a member of SAVAK.
The documentary evidence shows that
SAVAK was a brutal, violent instrument of repression that terrorized all levels
of Iranian society at the time. The Board also mentioned the [translation] “notoriousness of SAVAK’s
human rights violations” and the motions judge herself noted that “there
is no doubt that Savak is an organization that deprived other people of their
rights or restricted those rights, thereby violating the purposes and
principles of the United Nations”.
Essentially,
the Board decided that there were serious reasons for considering that, because
of his role as the liaison officer with SAVAK and the knowledge of SAVAK’s
activities that, in its view, he could not have failed to have, the respondent
was an accomplice to those activities. The motions judge expressed
disagreement with the Board’s decision: in her view, complicity assumes
membership in the organization, and the respondent was not a member of SAVAK.
In our
view, the motions judge was wrong to intervene. Her interpretation of
exclusion clause 1F is inconsistent with what this Court held in Ramirez v.
Canada (Minister of Employment and Immigration)[3],
Moreno v. Canada (Minister of Employment and Immigration)[4]
and Sivakumar v. Canada (Minister of Employment and Immigration).[5]
From what
MacKay J. said in Gutierrez et al. v. Minister of Employment
and Immigration,[6]
the motions judge derived the principle that there cannot be complicity in the
commission of an international offence unless the following three conditions
are met: (1) membership in an organization that commits such 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.
We do not
think that such an interpretation is possible in light of the context in which
MacKay J.’s remarks were made and, in any event, it would give this Court’s
judgments in Ramirez, Moreno and Sivakumar a scope that
they do not and cannot have.
First of
all, those three cases involved claimants who were members of the implicated
organization. The issue of the complicity of a non-member therefore did not
arise.
Moreover,
in light of MacGuigan J.A.’s comments in Ramirez,[7]
it is clear that the Court expressly refused to make formal membership in an
organization a condition for the exclusion clause to apply. At p. 320 of his
reasons, MacGuigan J.A. took care to specify that it was
undesirable
to go beyond the criterion of personal and knowing participation in
persecutorial acts in establishing a general principle. The rest should be
decided in relation to the particular facts.
It is true that among
“the particular facts” of the case with which MacGuigan J.A. went on to deal in
his reasons was the fact that Ramirez was actually an active member of the
organization that committed the atrocities (the Salvadoran army) and the fact
that he was very late in showing remorse, but those were facts that helped
determine whether the condition of personal and knowing participation had been
met; they were not additional conditions. Membership in the organization will,
of course, lessen the burden of proof resting on the Minister because it will
make it easier to find that there was “personal and knowing participation”.
However, it is important not to turn what is actually a mere factual
presumption into a legal condition.
In our
view, it goes without saying that “personal and knowing participation” can be
direct or indirect and does not require formal membership in the organization
that is ultimately engaged in the condemned activities. It is not working
within an organization that makes someone an accomplice to the organization’s
activities, but knowingly contributing to those activities in any way or making
them possible, whether from within or from outside the organization. At p.
318, MacGuigan J.A. said that "[a]t bottom, complicity rests . . . on the
existence of a shared common purpose and the knowledge that all of the parties
in question may have of it". Those who become involved in an operation
that is not theirs, but that they know will probably lead to the commission of
an international offence, lay themselves open to the application of the
exclusion clause in the same way as those who play a direct part in the
operation.
That
being said, everything becomes a question of fact. The Minister does not have
to prove the respondent’s guilt. He merely has to show — and the burden of
proof resting on him is "less than the balance of probabilities"[8] — that there are serious
reasons for considering that the respondent is guilty. In the case at bar, the
Board concluded as follows:[9]
[TRANSLATION]
Because of the training he received and the responsible positions he held, inter
alia between 1974 and 1978 and from 1978 until the fall of the Shah of
Iran, Mr. Bazargan could not have failed to be very well informed about the
kind of repressive measures used by SAVAK to punish any social and political
dissidence in the country. However, he collaborated with that organization for
many years as a senior police officer in the Iranian security forces.
Accordingly, given the notoriousness of SAVAK’s human rights violations, the
positions of authority the claimant held until 1980 and the knowledge he
necessarily had of the situation, we must conclude that in this case there are
serious grounds for considering that the claimant tolerated, encouraged or even
facilitated SAVAK’s acts and therefore became guilty of acts contrary to the
purposes and principles of the United Nations.
These
inferences and this conclusion are based on the evidence and are reasonable.
This Court has noted on many occasions that the Board is a specialized tribunal
that has complete jurisdiction to draw the inferences that can reasonably be
drawn.[10] In the case at bar, the
motions judge was all the more wrong to intervene given that the Board’s
inferences were accompanied by devastating observations on the credibility of
that part of the respondent’s testimony in which he argued that he had no
knowledge of SAVAK’s activities.
Accordingly,
the appeal will be allowed, the motions judge’s decision set aside and the
application for judicial review of the Board’s decision of July 28, 1992
dismissed.
signed:
Robert Décary
J.A.
Certified true translation
A. Poirier
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-400-95
APPEAL FROM THE JUDGMENT OF THE TRIAL DIVISION RENDERED ON MAY 30, 1995
IN FILE NO. A-51-93
STYLE OF CAUSE: MINISTER
OF CITIZENSHIP AND
IMMIGRATION
AND:
MOHAMMAD HASSAN
BAZARGAN
PLACE OF HEARING: Montréal,
Quebec
DATES OF HEARING: September 16
and 18, 1996
REASONS FOR JUDGMENT OF THE COURT (THE HONOURABLE MR. JUSTICE MARCEAU,
THE HONOURABLE MR. JUSTICE DÉCARY AND THE HONOURABLE DEPUTY JUSTICE CHEVALIER)
DELIVERED FROM THE BENCH BY: the Honourable Mr. Justice Décary
Dated: September
18, 1996
APPEARANCES:
Sylviane Roy for the
Appellant
Denis Buron for
the Respondent
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General of Canada
Montréal, Quebec for
the Appellant
Denis Buron
Montréal, Quebec for
the Respondent
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