Canada (Minister of Citizenship and Immigration) v. Nagra

Transcription

1 Canada (Minister of Citizenship and Immigration) v. Nagra Between The Minister of Citizenship and Immigration, applicant, and Harjinderpal Singh Nagra, respondent [1999] F.C.J. No Court File No. IMM Federal Court of Canada - Trial Division Vancouver, British Columbia Rouleau J. Heard: October 7, Judgment: October 27, (22 paras.) Aliens Admission, refugees Status of refugee in Canada Refugee Division, determination by. Application by the Minister of Citizenship and Immigration for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board that Nagra was a Convention refugee. Nagra was a 39-year-old Sikh who, from his student days, had been very active in promoting Sikh rights in India and Canada. He had been detained and tortured in India on a number of occasions, and had served on the executive of an organization that the Minister claimed was involved in crimes against humanity. He arrived in Canada in The Minister argued that high office in an organization involved in violence implied knowledge of that organization's acts, and that the Board had erroneously relied on the fact that Nagra's colleagues had not been convicted of crimes of violence and failed to analyze the alleged violence of the organization. HELD: Application dismissed. The Board's findings were not patently unreasonable. While the Board erred in relying on the fact that Nagra's colleagues had no convictions for crimes of violence, the Board was nevertheless owed a high level of deference. The Court could not revisit the facts or weigh the evidence. Statutes, Regulations and Rules Cited: Immigration Act, s Counsel:

2 Helen Park, for the applicant. Christopher Elgin, for the respondent. 1 ROULEAU J. (Reasons for Order): This is an application by the Minister pursuant to section 82.1 of the Immigration Act for leave and judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated October 9, 1998 wherein the Board determined that the respondent was a Convention refugee. 2 The respondent is a 39 year old Sikh from India who had graduated in law and had joined the All India Student Sikh Federation (AISSF) in Between 1978 and 1984, the respondent was actively involved in protesting the treatment of Sikhs and in advocating for greater rights for Sikhs. During that period of time, he organized a number of AISSF branches throughout Rajasthan and conferences in collaboration with the Alkali Dal. 3 The respondent was arrested, detained and tortured on a number of occasions. 4 In 1981, he was made President of the AISSF for Rajasthan State. In September 1983, he took on the position of Organizing Secretary and, in that capacity, became a member of the High Command of the AISSF. In February 1984, he was awarded special recognition by the Head Priest at the Golden Temple. In May 1984, because of his training he was summoned by the President of the AISSF to assist in preparing a legal challenge of the ban of the AISSF. He left the area before the June 1984 confrontation at the Golden Temple. In 1984, he left India and set up the International Sikh Youth Federation (ISYF) on the instructions of both the President of the AISSF and the Head Priest of the Golden Temple. 5 The respondent arrived in Canada in February 1985 and continued to set up branches of the ISYF in various Canadian cities. He remained with the ISYF until February 1986 at which time he expressed his displeasure at the direction in which the organization was heading. He nevertheless continued as religious leader until May 1986, at which time he tendered his resignation. 6 The Board found that the respondent had good grounds to fear persecution should he return to India today and that there were no serious reasons for considering that the respondent had committed crimes against humanity. 7 The issues to be determined are the following: 1. Did the Board err in law in its decision with respect to the exclusionary aspects of the respondent's claim? 2. Did the Board err in law in applying the wrong standard of proof in determining whether leaders of the AISSF in India committed crimes against humanity?

3 3. Did the Board err in law in applying the wrong test in determining whether violent acts committed by the AISSF in India constituted crimes against humanity under the exclusion clause? 4. Did the Board err in law by applying the wrong test in determining whether the respondent was complicit in crimes committed by the AISSF in India or by the ISYF internationally without regard to his high leadership role within these organizations? 8 The applicant submits that the Board erred in law in determining that the acts attributable to his leaders Amrik Singh and Sant Jarnail Bhindranwale did not constitute crimes against humanity; that although the Board acknowledged that the documentary evidence indicated that these individuals were involved in terrible acts of violence, it erroneously relied upon the fact that they had not been convicted of these crimes as proof of lack of responsibility for these acts. 9 The applicant argues that the Board, contrary to the definition in article 1(F) of the United Nations Convention relating to the Status of Refugees, failed to have regard to the most recent international instrument with respect to the definition of crimes against humanity. The relevant portion of article 1(F) reads as follows: 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 to such crimes. 10 The applicant submits that the Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17, 1998, sets out standards concerning crimes against humanity and war crimes which were not properly addressed by the Board. Specifically, the applicant alleges that this instrument clarifies that crimes against humanity need not be both systemic and widespread. The Board did not apply the correct test and thereby erred in law. The applicant adds that the Refugee Division completely failed to analyze the alleged acts of violence of the ISYF in order to determine whether these acts constituted crimes against humanity and, if so, whether the respondent was complicit in these crimes. 11 The applicant argues that the Board erred in law in reaching its conclusion that the respondent was not complicit in any acts of violence; that the Board should have applied the test which was developed in the law for leaders of organizations. The applicant alleges that the law is clear that knowledge of crimes and a common purpose can be inferred from the member's position within the organization; see Sivakumar v. Canada [1994] 1 F.C. 433 at 440. In light of the evidence in the case at bar, particularly since the respondent was a member of the High Command (AISSF), the applicant contends that the respondent had knowledge and purpose. Furthermo re, by failing to

4 analyze the respondent's activities or either the AISSF's or the IYSF's activities, the Board erred in law. 12 The respondent alleges that the Refugee Division properly applied the law with respect to the application of the exclusion clauses and applied the appropriate standard of proof. He contends that there was no evidence to suggest that the respondent himself was involved in any incidents of violence or that the AISSF as an organization was responsible for crimes against humanity. According to the respondent, he could only be excluded from the definition of the Board if there were serious reasons for considering that Amrik Singh and Sant Jarnail Bhindranwale had committed crimes against humanity and if he was complicit in tho se crimes. 13 The respondent argues that it is the Board's responsibility to weigh evidence and make findings of fact. In this case, it made a finding that the various acts of violence could not be attributed to Amrik Singh and Sant Jarnail Bhindra nwale and that the applicant has not provided any proof that the Refugee Division ignored relevant evidence or based its decision on irrelevant considerations. The respondent alleges that the Refugee Division was aware of the proper standard of proof in e xclusion cases and correctly referred to it. 14 The respondent claims that the applicant has misstated the issue regarding complicity. He alleges that if the Board erroneously concluded in this case that amrik Singh and Sant Jarnail Bhindranwale were not responsible for acts of violence, they concluded that the respondent would not have known of these acts; and even if he had known of these acts of violence, there was no evidence before the Board of any shared common purpose between him and those two individuals. If the Board was wrong in its appreciation of the two individuals who were head of AISSF, it was not central to determining the status of the respondent. The Board accepted his evidence that he was not aware of the violence and therefore that he could not be complicit. 15 In Moreno v. Canada (1993), 21 Imm. L.R. (2d) 221, the Federal Court of Appeal established a number of important principles for the analysis of the case at bar. Firstly, it states that a narrow construction of the exclusion clause is favourable in view of the possible persecution awaiting persons who might otherwise be declared Convention refugees. It also determines that in order to invoke the exclusion clause, personal involvement in persecutional acts must be established. Finally, contrary to what the Refugee Division implied, the Court of Appeal affirms that "the applicability of the exclusion clause does not depend on whether a claimant has been charged or convicted of the acts set out in the Convention. The Minister's burden is merely to meet the standard of proof embraced by the term "serious reasons for considering"." 16 The applicant in the Sivakumar case, supra, had a leadership position within a violent organization. The Federal Court of Appeal stated in respect to complicity that "remaining in an organization in a leadership position with knowledge that the organization was responsible for crimes against humanity may constitute complicity". The Court added "In such circumstances, an important factor to consider is

5 evidence that the individual protested against the crime or tried to stop its commission or attempted to withdraw from the organization". 17 Although the Board decided that the evidence before it did not establish that the respondent had personally committed crimes against humanity, it appears it erred by relying upon the fact that Amrik Singh and Sant Jarnail Bhindranwale had not been convicted of these crimes as proof of lack of responsibility for these acts. 18 The Board nevertheless found as a fact that the respondent was not involved while in India with the violence of the leaders and that he was not present during the Golden Temple confrontation. 19 The Board made no determination as to the obligations of the ISYF but were satisfied that he resigned when he became aware of any illegal or terrorist activities. As the Board found, he was even described by his peers as being an agent of the Indian Government. 20 From the outset, the Board wrote: "I find that the claimant's testimony was generally credible". We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one; see Ross v. New Brunswick School District No. 15 [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. 21 I have not been convinced that the findings of fact made by the Board is patently unreasonable. 22 For these reasons, he application for judicial review is dismissed. ROULEAU J.