Rai v. Canada (Minister of Citizenship and Immigration)
|Publisher||Canada: Federal Court|
|Author||Federal Court of Canada, Trial Division|
|Publication Date||12 July 2001|
|Citation / Document Symbol|| FCT 784|
|Cite as||Rai v. Canada (Minister of Citizenship and Immigration),  FCT 784, Canada: Federal Court, 12 July 2001, available at: http://www.refworld.org/docid/43fece192.html [accessed 22 May 2013]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
SYREE KUMAR RAI
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
 The applicant seeks to set aside a decision of the Refugee Board (the "Board"), dated March 29, 2000, pursuant to which his claim to refugee status in Canada was denied.
 The applicant, born on June 4, 1979, is a citizen of Nepal. He claims to have a well-founded fear of persecution based on his political opinions. Specifically, he became a member of the United Peoples' Front (UPF) in 1991. It is in connection with his activities within that party that he fears persecution in Nepal.
 He left Nepal on June 22, 1996 and arrived in Canada on June 24, 1996. On July 23, 1996, he claimed refugee status.
 The Board denied his claim on the ground that he was excluded from the definition of Convention Refugee, pursuant to article 1, section F(a) of the Convention. Subsection 2(1) of the Immigration Act provides as follows:
Convention refugee [..]
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.
réfugié au sens de la Convention [...]
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
 As to article 1, section F(a) of the Convention, it reads as follows:
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;
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;
 The Board's conclusion, which appears at page 7 of its decision, reads as follows:
In summary, the panel determines that this case has the requisite conditions for the claimant to be excluded from the definition of Convention refugee and thereby from international protection: the panel determines that the UPF is an organization that is committed to violent terrorist acts which may be defined as crimes against peace, war crimes, and crimes against humanity according to international instruments; and that the claimant intentionally, willingly, and knowingly participated in the UPF and thus contributed to these violent terrorist acts.
 I begin my analysis with the Federal Court of Appeal's decisions in Bazargan v. M.E.I. (1996), 205 N.R. 282, Ramirez v. Canada (M.E.I.),  2 F.C. 306 and in Moreno v. M.E.I.,  1 F.C. 298. In Ramirez, supra, MacGuigan J.A., at pages 314 and 315, sets forth the more difficult question at issue before the Court, in the following terms:
In the case at bar the most controversial legal issue has to do with the extent to which accomplices, as well as principal actors, in international crimes should be subject to exclusion, since the Refugee Division held in part that the appellant was guilty "in aiding and abetting in the commission of such crimes", and it is on this finding that, as will become apparent, the respondent's case must rest.
 At pages 317 and following, MacGuigan J.A. deals with the degree of complicity required to find an applicant guilty of crimes for which he or she can be excluded from the definition of Convention refugee. For the present purposes, MacGuigan J.A.'s remarks at pages 317, 319 and 320, suffice:
What degree of complicity, then, is required to be an accomplice or abettor? A first conclusion I come to is that mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status. Indeed, this is in accord with the intention of the signatory states, as is apparent from the post-war International Military Tribunal already referred to. Grahl-Madsen, supra, at page 277, states:
It is important to note that the International Military Tribunal excluded fromt he collective responsibility 'persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations' [International Military Tribunal, i. 256].
It seems 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.
Similarly, mere presence at the scene of an offence is not enough to qualify as personal and knowing participation (nor would it amount to liability under section 21 of the Canadian Criminal Code), though, again, presence coupled with additional facts may well lead to a conclusion of such involvement. In my view, mere on-looking, such as occurs at public executions, where the on-lookers are simply by-standers with no intrinsic connection with the persecuting group, can never amount to personal involvement, however humanly repugnant it might be. However, someone who is an associate of the principal offenders can never, in my view, be said to be a mere on-looker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts.
At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it. Such a principle reflects domestic law (e.g., subsection 21(2) of the Criminal Code), and I believe is the best interpretation of international law.
One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war. Probably most combatants in most wars in human history have seen acts performed by their own side which they would normally find reprehensible but which they felt utterly powerless to stop, at least without risk to themselves. While the law may require a choice on the part of those ordered actually to perform international crimes, it does not demand the immediate benevolent intervention, at their own risk, of all those present at the site. Usually, law does not function at the level of heroism.
In my view, it is 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.
 The issue of complicity was again dealt with by the Court of Appeal in Bazargan, supra. There, at page 287, Décary J.A., echoing the remarks of MacGuigan J.A. in Ramirez, supra, states the following:
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 F.C., 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" (Ramirez, supra, at p. 314 F.C.) - that there are serious reasons for considering that the respondent is guilty.
 I now turn to the Court of Appeal's decision in Moreno, supra where, at page 321, Robertson J.A. revisits the issue of guilt by association:
It is well settled that mere membership in an organization involved in international offences is not sufficient basis on which to invoke the exclusion clause; see Ramirez, at page 317, and Laipenieks v. I.N.S., 750 F. 2d 1427 (9th Cir. 1985), at page 1431. An exception to this general rule arises where the organization is one whose very existence is premised on achieving political or social ends by any means deemed necessary. Membership in a secret police force may be deemed sufficient grounds for invoking the exclusion clause; see Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161 (F.C.T.D.), but see Ramirez at page 318 et seq. Membership in a military organization involved in armed conflict with guerrilla forces comes within the ambit of the general rule and not the exception.
 Mr. Sloan, counsel for the applicant, conceded that the Maoist faction of the Communist Party of Nepal had engaged in crimes. However, he took the position that the crimes and abuses committed by the Maoists were not such so as to justify exclusion under article 1, section F(a) of the Convention. Further, Mr. Sloan argued that the UPF was the political wing of the Maoist faction. Hence, membership in the UPF was not sufficient, per se, to make an accomplice out of the applicant. Lastly, relying on Moreno, supra and Ramirez, supra, Mr. Sloan submitted that the Maoist faction, notwithstanding the crimes committed, did not constitute an organization with a limited, brutal purpose.
 The Board excluded the applicant from the definition of convention refugee for the following reasons. Firstly, the Board found that the UPF was an organization that was committed to violent terrorist acts which, in its opinion, could be defined as crimes against peace, war crimes and crimes against humanity. Secondly, the Board found that the applicant, as a member of the party, had intentionally, willingly and knowingly participated in that party and, as a result, had contributed to the UPF's crimes. The Board noted, in reaching its conclusion, that the applicant was aware of and understood the nature of the "People's War" being carried on by the UPF. It also noted that the applicant understood that there was an alliance between his party and the Maoists with regard to the "People's War". The Board also noted that the applicant had not only paid the monthly membership dues to the party between November 1994 to October 1996 but that he had paid, willingly, a sum over and above the required monthly contribution of five rupees. The Board finally noted that notwithstanding his alleged objections to the party's orientation and activities, he never withdrew from the party.
 The Board found that the applicant's assertions that he became disaffected with the party because of its violent activities and that he had been threatened by the party not to be credible. The Board was of the view that these assertions were an attempt by the applicant to avoid possible exclusion.
 The applicant's membership in the UPF is not disputed, nor can it be, since the applicant himself testified that he was a member. With respect to the Board's finding that the UPF was engaged in crimes by reason of its association with the Maoist faction, I have no hesitation in coming to the view that that finding is not unreasonable. The best evidence in support of the Board's finding is the testimony of the applicant who clearly indicated that his party, the UPF, was actively engaged in the "People's War". With respect to the "People's War", at no time during the course of his testimony did the applicant make a distinction between the UPF and the Maoist faction. Thus, in my view, the Board's finding on this point is reasonable.
 The question which arises is whether, on the authority of Ramirez, Bazargan and Moreno supra, the applicant "intentionally, willingly, and knowingly participated in the UPF and thus contributed to these violent terrorist acts". In other words, is the applicant an accomplice or abettor of the crimes committed by certain members of the UPF and Maoist faction?
 First of all, let me say that the evidence appears to support the view that the UPF/Maoist faction is an organization whose very existence is now premised on achieving political ends by any means deemed necessary. However, I am not prepared to say, on the same evidence, that the UPF/Maoist faction is an organization principally directed to a limited, brutal purpose. It is significant to note that when the applicant joined the UPF in 1991, the party was a political contender with duly elected representatives. It is only in 1996 that the party, in alliance with the Maoist faction, decided that means other than democratic means were going to be employed to achieve political ends.
 At paragraph 36 of his memorandum, Mr. Sloan makes the following argument:
The applicant did not participate in any crimes against humanity, he was not even present as a spectator when such crimes were committed, he had no prior knowledge of any such crimes, he had no role in the planning of any such crimes, not even in identifying prospective victims, he was not a member of a military or para-military unit which committed such crimes, and he had no power to give orders to anyone.
 As Décary J.A. stated in Bazargan, supra a determination as to whether a person, in a given case, is an accomplice is entirely a question of fact. Décary J.A. also stated that what rendered a person accomplice to crimes was his willing contribution to the crimes "in any way or making them possible, whether from within or from outside the organization".
 In my view, there is simply not enough evidence to support the Board's finding that the applicant should be excluded. In other words, I am of the view that there is not enough evidence to meet the threshold of serious reasons for considering that the applicant is guilty of those crimes for which he may be excluded under article 1F(a). I am therefore of the opinion that the Minister has not met his burden of proof.
 In reaching this conclusion, I am mindful of the fact that the Board did not find the applicant entirely credible. Whether this finding results from the fact that the applicant was attempting to hide his participation in the commission of crimes or from the fact that his claim was either a total or a partial fabrication, I cannot say. However, as I have already said, the evidence does not, in my view, meet the necessary threshold to exclude him. I am also mindful of the deference that I owe to the Board.
 For these reasons, this application for judicial review shall be allowed. As a result, the Board's decision dated March 29, 2000 shall be set aside and the matter shall be returned to a differently constituted panel for reconsideration. In closing, I would like to make the following suggestion to the new panel. It would be preferable for the new panel, as it would have been preferable for the panel that rendered the impugned decision, to consider both exclusion and inclusion so as to avoid unnecessary delays.
 Counsel for the applicant proposes that I certify the following question, namely, whether a member of the political wing of an organization, engaged in activities which constitute crimes in respect of which exclusion under article 1, section F(a) of the Convention may result, can be said to be a willing participant in the organization's activities.
 In my view, the proposed question ought not to be certified, since the answer to the question depends entirely on the facts of the case. The question does not meet the test set out by the Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4.
July 12, 2001