Khan v. Canada (Minister of Citizenship and Immigration)

Ottawa, Ontario, this 14^th day of March, 2003.

Present: THE HONOURABLE MR. JUSTICE KELEN

Between:

ASEEL KHAN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

KELEN J.:

[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD") dated January 2, 2002, wherein the CRDD determined that the applicant was excluded from consideration as a refugee under Article 1F(a) of the 1951 Convention Relating to the Status of Refugees.

[2] Article 1F(a) states:

Article 1. Definition of the term "refugee"

[...]

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;

[...]

Article premier. -- Définition du terme "réfugié"

[...]

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 rime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes;

[...]

FACTS

The applicant is a Pashtun citizen of Afghanistan who came to Canada on October 19, 1999. He claimed a well-founded fear of persecution from the Taliban on account of his perceived political opinion. The applicant was conscripted into the Afghan Army in 1981 and attended the Afghan Air Force Academy until 1984. Between1984 and 1998 the applicant was a helicopter pilot with the 377^th Helicopter Regiment of the Afghan Air Force. The applicant served under the communist Najibullah government in Afghanistan until 1992, rising to the rank of Colonel (the fifth highest rank in the Afghan military). He also served under the Muhajideen government from 1992 to 1998.

[4] A representative of the Minister participated in the hearing of the applicant's claim and alleged that there were serious reasons for thinking the applicant was complicit in the commission of war crimes and/or crimes against humanity committed during the Najibullah and Muhajideen governments. The applicant claims that his duties were purely humanitarian in nature and that he was never involved in combat.

[5] At page 5 of its reasons, the CRDD stated:

The panel did not find the claimant's evidence that he took part in purely humanitarian missions during his 14 years of service credible. This testimony was contradicted by his answers given at his interview at the port of entry and the specific documentary evidence on the tasks undertaken by pilots of the 377^th Helicopter Regiment to which he belonged. Both the port of entry notes and the documentary evidence indicate that the re-supply of Soviet troops was a major function of this unit. Other functions included rescue and casualty evacuations as well as air assault. The panel finds that the claimant flew transport helicopters involved in the re-supply of the Soviet and Afghan military forces at the front, and rescue and casualty evacuations. [...]

[6] In response to the applicant's claim that he could not leave the Afghan Air Force, the CRDD noted that the documentary evidence showed few Afghans were willing to fly transport helicopters during the years of Soviet occupation. The panel also noted that many Afghan helicopter pilots and soldiers deserted to the Muhajideen resistance during this time.

[7] Based on the applicant's involvement with the Afghan Air Force, the CRDD found there were serious reasons to believe the applicant was complicit in crimes against humanity committed by the Soviet Union's military forces between 1984 and 1989 in association with the Najibullah government. The CRDD concluded that there was insufficient evidence to link the applicant to any crimes against humanity committed by the Muhajideen government between 1992 and 1998. Due to his involvement with the Najibullah government, the panel found the applicant was inadmissible to Canada by reason of Article 1F(a). Had the applicant not been excluded by Article 1F(a), the panel would have found him to be a Convention refugee.

ANALYSIS

The applicant submits that the CRDD erred in law when it determined that the applicant shared a common purpose with the Afghan Air Force by virtue of his long-term service. It is submitted that the applicant was forced to join the military and could not quit without endangering his family or himself. His choice was to remain with the Afghan military or join the Muhajideen, who were also known to commit human rights abuses. The issue is whether or not one can have a shared common purpose with a regime if there is no feasible alternative available.

[9] The respondent submits that the CRDD's reasoning is solid. The documentary evidence supports the panel's conclusion that few Afghans were willing to fly transport helicopters for the Najiballah regime and that many pilots deserted to the resistance during this time period. Furthermore, even though the applicant may have been initially conscripted into the military, the record shows he was able to resign from his employment with the Air Force and that he continued to work for the Air Force under the Muhajideen government.

[10] The relevant principles in this area are set out in a trio of Federal Court of Appeal decisions: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.); and Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.). Essentially, these cases establish that an individual who has been complicit in the commission of an international crime committed by another is equally responsible for that offence. The criterion for complicity is that an individual must share a common purpose with the perpetrator and his or her participation must be personal and knowing.

[11] Madam Justice Reed reviewed these cases in Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 and added at paragraph 6:

As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation. [emphasis added]

[12] It has also been established that recruitment or conscription into military service is not a conclusive factor mitigating against the finding of complicity in international crimes, see Moreno, supra, Fletes v. Canada (Secretary of State) (1994), 83 F.T.R. 49, and Gracias-Luna v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 812 (T.D.) (QL).

[13] With these principles in the mind, the Court will now consider the particular facts of this case. The CRDD had good reason to conclude that the applicant's participation in the Afghan Air Force was personal and knowing. The applicant's long involvement with the Afghan Air Force, his promotion to the rank of colonel, independent documentary evidence on the role of the 377^th Helicopter Regiment and doubts about the applicant's credibility, lead to the conclusion that the applicant had knowledge of, and was complicit in, the conduct of the Afghan military. Moreover, the applicant failed to take any steps to disassociate himself from these activities. Based on the documentary evidence, the CRDD concluded that the applicant could have left the Afghan Air Force as other Afghan pilots and soldiers did during this time period. The CRDD is an expert tribunal and entitled to deference with respect to its factual conclusions, see Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282 at para. 13 (F.C.A.). The applicant has failed to demonstrate that the CRDD's conclusion on this point was unreasonable.

[14] Accordingly, the CRDD properly determined that the applicant was excluded from protection as a Convention refugee by reason of Article 1F(a). No questions were proposed for certification and none will be certified.

ORDER

THIS COURT ORDERS THAT:

This application for judicial review is dismissed.

"Michael A. Kelen"

J.F.C.C.

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET: IMM-422-02

STYLE OF CAUSE: ASEEL KHAN

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: TUESDAY, MARCH 11, 2003

REASONS FOR ORDER

AND ORDER BY: KELEN J.

DATED: FRIDAY, MARCH 14, 2003

APPEARANCES BY: Ms. Carey Mc Kay

For the Applicant

Ms. Negar Hashemi

For the Respondent

SOLICITORS OF RECORD: Ms. Carey Mc Kay

Barrister and Solicitors

257 Danforth Ave. Toronto, Ont.

M4K 1N2

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

Date:20030314

Docket: IMM-422-02

BETWEEN:

ASEEL KHAN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER