Docket: IMM-12664-23
Citation: 2025 FC 487
Ottawa, Ontario, March 17, 2025 PRESENT: The Honourable Madam Justice Heneghan |
BETWEEN: |
GURNAIB SINGH |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
REASONS FOR JUDGMENT
[1] Mr. Gurnaib Singh (the “Applicant”
) seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Appeal Division (the “RAD”
), dismissing his appeal from a decision of the Immigration and Refugee Board, Refugee Protection Division (the “RPD”
). In its decision, the RPD refused the Applicant’s application for protection on the grounds that he is excluded from protection pursuant to section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”
).
[2] The Applicant is a citizen of India. He was a member of the Indian Army from 1984 until he retired in 2000. He worked as a truck driver. He alleged that since 2018, he was targeted by the Indian police for his political views. He arrived in Canada as a visitor in 2019 and filed his claim for refugee protection on March 5, 2022.
[3] The Minister of Public Safety and Emergency Preparedness intervened before the RPD, arguing that the Applicant is excluded from refugee protection pursuant to section 98 of the Act, which provides as follows:
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.
|
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.
|
[4] The following provision of Schedule F is relevant and provides as follows:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
|
Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser:
|
(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;
|
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;
|
[5] Among other things, the RAD found that the Indian Army was engaged in an attack against the Indian population at large. It also found that the Indian Army committed crimes against humanity in areas adjacent to where the Applicant was stationed and during his time of service.
[6] The RAD found that the Applicant was aware that his regiment was involved in counter-insurgency activities and that he knew about the Indian Army’s crimes against humanity. It found that he was complicit in those crimes, within the meaning of the Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, 17 July 1998, implemented into domestic law by the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24.
[7] The Applicant now argues that the RAD made unreasonable findings of fact, in particular in its finding of complicity, and made an unreasonable decision.
[8] The Minister of Citizenship and Immigration (the “Respondent”
) submits that the decision is reasonable and that there is no basis for judicial intervention.
[9] Following the decision of the Supreme Court of Canada in Vavilov v. Canada (Citizenship and Immigration), [2019] 4 S.C.R. 653, the decision is reviewable on the standard of reasonableness.
[10] In considering reasonableness, the Court is to ask if the decision under review "bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on that decision"
; see Vavilov, supra at paragraph 99.
[11] In light of the evidence before the RAD and the submissions of the parties, I agree with the Applicant that the RAD unreasonably relied on the decision in Massroua v. Canada (Citizenship and Immigration), 2019 FC 1542 to find that the Applicant met the test in Ezokola v. Canada (Citizenship and Immigration), [2013] 2 S.C.R. 678.
[12] While the RAD, like counsel, is entitled to review decisions of this Court for the purpose of discharging its role as an “appellate”
body, reliance on a decision with significant factual differences may lead to unreasonable findings by the RAD.
[13] In my opinion, that error happened here. The RAD did not distinguish between an organization with a “limited and brutal purpose”
, and one that exists for legitimate purposes, but whose members may have committed crimes.
[14] In my view, the RAD unreasonably found that the Applicant himself had contributed to crimes against humanity. This unreasonable finding is a sufficient basis to allow the application for judicial review, without considering the other arguments advanced by the parties.
[15] In the result, the application for judicial review will be allowed, the decision of the RAD will be set aside and the matter will be remitted to a different panel of the RAD for redetermination. There is no question for certification.
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