A.C. and B.D. v. Canada (Minister of Citizenship and Immigration)

Ottawa, Ontario, this 19^th day of December, 2003

Present: The Honourable Justice James Russell 

BETWEEN:

A.C. and B.D.

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

[1] The Applicants seek judicial review under 72.1 of the Immigration and Refugee Protection Act, S.C.2001, c.27 ("IRPA") of the decision of a panel of the Refugee Protection Division of the Immigration and Refugee Board ("Panel") dated August 1, 2002, ("Decision"). The Panel determined that A.C. and his wife, B.D. are not Convention refugees. The Minister has intervened in this action.

BACKGROUND

[2] A.C., the Principal Applicant, is a citizen of Bangladesh who fears persecution in that country. He was found guilty by a Bangladeshi court for his role as a co-conspirator in the August 14, 1975 coup in Bangladesh that resulted in the death of then president Sheikh Mujibur Rahman and members of his family and entourage. B.D. is the principal Applicant's wife and her claim is based to some extent on that of her husband.

[3] In 1971 the Principal Applicant was a career officer in the Bangladesh military and one of the leaders of the war of independence with Pakistan following which the state of Bangladesh was created. After the war, he remained very well connected to the military and political establishment of the country, but he claims he was never directly involved in politics.

[4] In July, 1974, the Principal Applicant was forced to resign from the military because of his disagreement with the policies of president Sheikh Mujibur Rahman. After his resignation he went into private business and set up a company involved in the importation and marketing of different products such as cigarettes, diesel engines and office equipment.

[5] On August 15, 1975, president Sheikh Mujibur Rahman and the rest of his family were killed during a military coup. Only two members of the family, who were abroad at the time, survived. As a result of the coup, a new government was installed.

[6] The Principal Applicant was known as an open critic of the former president because the Mujib regime had become corrupt and tyrannical. It installed a single party government with the political organization known as BAKSAL (Bangladesh Krishak Sramik Awami League), or simply the Awami League, and the president was given a life-time appointment.

[7] The Principal Applicant denies all allegations which link him to the coup on 1975. He claims his involvement was limited to mustering support for General M.A.G. Osmany, General Ziaur Rahman, other military leaders and freedom fighters and the 1^st Bengal infantry regime. On the night prior to the coup, he alleges that he was with his current wife (though they were not married at the time) and other family members preparing a rush order of T-shirts for a scheduled rally in support of the president that was due to take place on the following day. When he heard about the coup he claims that he went to the military barracks and he visited the radio station. He was able to cross security checkpoints without difficulty to get to these places.

[8] During the years after the coup, there was no legal prosecution of the people who had taken part, and many of the participants, including the Principal Applicant, were assigned diplomatic postings abroad.

[9] In 1996, a change of government occurred in Bangladesh and the Awami League came to power. The Principal Applicant was recalled but, believing there were ulterior motives behind the recall, he did not return to Bangladesh. He and his wife came to Canada on July 5, 1996. On June 14, 1996, the daughter of the late president (Sheikh Hasina Wazed) was elected as leader of the Awami League. She started the process of prosecuting those who were responsible for the assassination of her father and her family in 1975, and she vowed to bring them to justice.

[10] On November 8, 1998, the Principal Applicant was found guilty of criminal offences for his role in the coup of August 1975 by a Bangladeshi trial court and was sentenced to death by firing squad. Later, the High Court upheld the death sentence for 12 of the 15 conspirators, and of these 12 persons, 4 are in jail. The Principal Applicant was not present at the trial and was represented by a court-appointed defence lawyer. The appeal of his case was still pending at the time of the hearing of this Application.

[11] More recently, the Bangladesh Nationalist Party ("BNP") has come to power, with the new prime minister, Khaled Zia, defeating the Awami League. It is suggested by some sources that the BNP, by delaying the appeal of the principal Applicant's case, does not have the same political will as the Awami League to proceed with death sentences against the coup leaders.

DECISION UNDER REVIEW

[12] The Panel determined that the Principal Applicant is not a Convention refugee nor a person in need of protection, as described in ss. 96 and 97 of the IRPA, and he is excluded from protection under s. 98 and Article 1 F(a) and (b) of the Refugee Convention. 

[13] The Panel found there were serious reasons for considering that the Principal Applicant had committed a serious non-political crime and is, therefore, excluded by Article 1 F(b). In particular, the Panel stated the following:

Referring to findings of the Amnesty International (AI) research centre in London which found no indication of bias or unfairness in the trials or the 15 former military officers accused and/or convicted of the assassination of the president, the Panel has found that applicant had a fair hearing. The physical absence did not render the criminal proceeding unfair or biassed and it was the applicant who chose not to appear for the hearings and be represented by the court -appointed defence lawyer.

The Panel determined that the new letter of Gloria Nafziger from April 5,2002, does not in anyway negate the earlier letter from AI's London Research office.

The panel also found it reasonable to expect that the applicant would ask the witnesses who corroborated his alibi during the refugee hearing to have at least had sworn affidavits stating what they had testified to at this refugee hearing.

The panel made implausibility findings about the applicant's ability to travel through the military checkpoints without any difficulties in the hours that followed the assassination.

[14] The Panel also indicated that the Principal Applicant, by virtue of being a conspirator, belonged to a group with "limited and brutal purpose." The Panel found that, on a balance of probabilities, the Principal Applicant had personal knowledge of, and knowingly participated in, the planning of the coup and the crimes committed during the coup. The Panel also held that the coup was a systematic attack directed against a particular civilian population (namely the then president's wife, children, family and members of the entourage), which made it a crime against humanity. About 20 people were killed.

[15] The Panel concluded that the Principal Applicant fears prosecution, not persecution within the meaning of the Convention refugee definition, and is nothing more than a fugitive from justice.

[16] The Panel found the wife of the Principal Applicant was not subject to exclusions under Article 1 F(a) and (b) of the Convention, but it also determined that she has no claim to Refugee status in her own right. It noted that, whatever fear she might have had when the Awami League was in power, the change in government meant that it was reduced to less than a mere possibility.

PERTINENT LEGISLATION

[17] Relevant sections of IRPA are as follows:

96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.		96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: a) soit se trouve hors de tout pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays don't elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée_: a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant_: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. (2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.

[18] The relevant parts of section F of Article I of the Refugee Convention, as set out in the Schedule to the IRPA, is 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;

b) has committed a serious non-political crime outside the country of refuge prior to his admission to that country as refugee;

ISSUES

[19] The following issues have been raised by the Applicants:

1. Whether the Panel erred in law in ignoring evidence with respect of its determination that the Principal Applicant was excluded from protection;

2. Whether the Panel erred in law in concluding that there were serious reasons for considering that the Principal Applicant had committed a serious non-political crime;

3. Whether the Panel erred in law in concluding that there were serious reasons for considering that the Principal Applicant had committed a crime against humanity;

4. Whether in concluding that the Principal Applicant did not have a well founded fear of persecution, the Panel asked itself the wrong question;

5. Whether the Panel erred in law in ignoring evidence in its conclusion that neither Applicant had a well founded fear of persecution.

ANALYSIS

What is the appropriate standard of review to apply to the Decision of the Panel?

[20] It is generally accepted that the Panel, which hears actual testimony, is in the best position to assess the credibility of witnesses. That is why this Court has shown a high level of deference towards decisions of the Panel and has adopted a standard of patent unreasonableness towards Panel findings. 

[21] Based on Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No.732 (Fed. C.A.) and Ahortor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No.705 (Fed. T.D.), it is also accepted that findings of credibility by the Panel must be supported by evidence and must not be based on erroneous findings of fact.

[22] In the absence of perverse or capricious findings by the Panel of facts that are central to its conclusions, this Court should not interfere with the Decision (Miranda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No.437 (Fed. T.D).

[23] The issue of whether the treatment by the Bangladesh authorities satisfies the definition of persecution is a question of mixed fact and law. The Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R.746 has indicated that the standard of review for these types of questions should be reasonableness simpliciter.

IGNORING EVIDENCE

[24] The Panel concluded that the weight of the evidence before it supported its conclusion that the Principal Applicant was excludable for having participated in the assassination of the president and his family in 1975. It acknowledged the Principal Applicant's denials of involvement, but rejected them. In reaching its conclusion, the Applicants argue that the Panel ignored evidence.

[25] The Panel had before it the testimony of a number of persons, including a former airforce officer who had been in Dhaka during the 1975 coup, the Principal Applicant's brother-in-law and sister-in-law, two academics, and a man who had stayed at his in-law's home from May, 1975 and was there in August, 1975. The evidence before the Panel that was contrary to its conclusions was that the Principal Applicant was not at the palace when the coup occurred. Further, he was not implicated in the coup, even as a planner, in any of the books written on it, and was only implicated in the planning in an article by someone who supported the assassinated president.

[26] While it may be that the Panel could decide to reject all of the evidence which corroborated or supported the Principal Applicant's claim not to have been involved in the planning or the carrying out of the coup, the Applicant says that the Panel could not just ignore it and not explain at all why it was not prepared to consider such evidence.

[27] In Cepeda Gutierrez v. M.C.I., [1998] F.C.J. No. 1425 this Court had the following to say about the failure to mention contrary evidence:

15. The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer toa n agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

16. On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

17. However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

[28] In this case, the testimony of the witnesses, and the documentary sources upon which they relied, was crucial evidence which contradicted the Panel's conclusion that the Principal Applicant was involved in the 1975 coup. The Applicants say it was not even mentioned by the Panel. It was as if it was never called. The Panel appears to have determined that the conviction of the Principal Applicant in Bangladesh was determinative of the issue of his involvement in the coup. It is submitted that this may be what led the Panel to ignore the extensive evidence before it as to the Principal Applicant's non-involvement in the coup. It is submitted that this is a clear error of law.

[29] In reply, the Respondent submits that the Panel did consider this evidence. In fact, it is summarized at page 2 of the Panel's reasons as follows:

The principal claimant denied all allegations that link him to the bloody coup. His alibi was that at the time that the coup was going on, he was visiting the female claimant at her family residence, whom he was not yet married to at the time. He and most of the witnesses testified that he was helping the female claimant and her brother finish a rush order of t-shirts for use at a scheduled rally in support of Sheikh Mujibur Rahman the following day. He testified, however, that as soon as he heard about the coup, he voluntarily went to several military barracks in Dhaka and allegedly offered to help facilitate the restoration of peace and calm. He said that he was able to pass through the main checkpoints without difficulty. Another place that he visited was the radio station, which had already fallen into the hands of the coup leaders. Again, he was able to enter the radio station without difficulty; not withstanding that security was extremely tight due to the volatility of the situation at the time.

[30] The Respondent submits therefore that the Panel did not ignore the evidence pointing to an opposite conclusion. Rather, it addressed this evidence and explained why it was not prepared to accept it. Thus, the Panel's reasons are consistent with the requirements of Cepeda-Gutierrez, supra.

[31] The Applicants' point is that this summary of the contrary evidence by the Panel is not sufficient to satisfy the burden that Cepeda-Gutierrez, supra, teaches ought to be applicable in this case. Several individuals placed the Principal Applicant elsewhere at the time of the coup. Academics testified that he was not mentioned as a co-conspirator in the relevant literature. In effect, the Panel merely relied upon the judgment of the Bangladeshi court (once again, without an adequate analysis of the evidence for a politically motivated and orchestrated prosecution) and questionable Amnesty International information concerning the fairness of the trial process in Bangladesh.

[32] The Applicants' argument here is that the evidence they adduced should have been considered in greater detail and, if the Panel chose to reject it, the Panel should have provided fuller reasons for doing so.

[33] I do not believe that Cepeda, supra, requires the degree of detail that the Applicants say is missing from the Panel's Decision. The Panel was not required to refer to every piece of evidence that it received that was contrary to its findings and explain how it was dealt with. We are not dealing here with a blanket statement from the Panel that it considered all of the evidence and a failure to mention important specific evidence. The issue here is whether the Court should infer from the Panel's failure to mention evidence contrary to its conclusions in detail that the Panel overlooked important evidence or made an erroneous finding of fact. A reading of the Decision as a whole does not give rise to such an inference. Not every piece of contrary evidence is discussed, but the Panel clearly indicates that it looked at the alibi evidence and says why, when other matters were taken into account it chose to reject it. As always, it is possible to disagree with the Panel's conclusions and argue that the weighing process was wrong. But the Court cannot conclude that the Panel ignored important contradictory evidence in this case. There was no reviewable error in this regard.

[34] It is worth bearing in mind that, in Ramirez v. Canada (M.C.I.), [1992] F.C.J. No. 109 the Federal Court of Appeal has held that "serious reasons for considering" in Article 1F establishes that the standard of proof is lower than a balance of probabilities.

[35] So, in this case, the Panel merely needed to satisfy itself that there were serious reasons for considering that the Principal Applicant had committed a serious non-political crime. In reaching a conclusion on this issue, the Panel relied heavily upon the conviction and denial of appeals handed down by the Bangladeshi courts as well as the Amnesty International assessment that regarded the trials as fair. The Applicant wishes to challenge the Panel's conclusions by pointing out that there was contrary evidence and there is even some confusion about what Amnesty International's position really was. Because the Principal Applicant's life is at stake, his counsel feels the Panel should have been much more meticulous. My review of the materials suggests that the Panel's care was commensurate with its obligation to satisfy itself that there were "serious reasons for considering" - not that it was more likely than not or beyond reasonable doubt - that a serious non-political crime had been committed. The contrary evidence introduced by the Applicants was not sufficient to convince the Panel, after taking into account the Bangladeshi decisions and the Amnesty International information, that there were no serious reasons. The Decision is brief but it is adequate to show that these matters were addressed and the appropriate weighing of competing evidence took place to reach a conclusion of serious reasons for considering the commission of a serious non-political crime.

SERIOUS NON-POLITICAL CRIME

[36] The Panel concluded that there were serious reasons to believe that the Principal Applicant had committed a serious non-political crime. It is submitted by the Applicants that the Panel erred in law in concluding that the crime, their involvement in which the Applicants dispute, can be characterized as a serious "non-political" crime.

[37] While the Principal Applicant denied any involvement in the assassination of the president of Bangladesh and his family and some of his staff in 1975, it is submitted that, in any event, the Panel erred in law in characterizing the crime as a non-political crime. The 1975 coup was clearly political and done with the express purpose of overthrowing a despotic regime that abused the human rights of its citizens and restricted fundamental freedoms. The Federal Court of Appeal in Gil v. M.E.I., [1994] F.C.J. No. 1559 (C.A.) reviewed the authorities on the political offence exception in extradition law and the development of an understanding of "serious non-political offence." Citing the UNHCR, the Court addressed the issue as follows:

10. When seeking to establish whether or not a common law offence constitutes both a "serious" and a "non-political" crime, regard should be had to the motive and purpose of the offence (the subjective element), as well as to its gravity and the extent to which the offence is proportional to the alleged goal (the objective elements).

11. Motive should be examined in the first instance, in the light whether it can be clearly demonstrated that the offence was not committed for personal reasons or gain but out of a genuine political commitment and towards a clearly identifiable political goal. Such might be the case, for example, where the offence was directed towards modification of the political organization (or the very structure) of the State. Where there is, from the outset, no identifiable political motive, the exemption from exclusion for political offenders does not arise.

12. Assuming there is an identifiable political motive, this fact has, in the overall judgment, to be set off against the character of the act in question. Where the offence is of a particularly serious and disproportionate nature it can not be treated as "political" for the purpose of Article 1(F) regardless of alleged political motive. In determining the gravity and proportionality of the offence, the following factors should be taken into account:

- The means used and the possibility of attaining the ultimate goal through alternative means (was, for example, murder or indiscriminate bombing the sole or even the most reasonable and explicable means of attaining the alleged, political end?).

- The proportionality of the offence to any alleged political goal (clearly the more atrocious, the less proportional).

[38] Further, citing La Forest on Extradition Law the Court noted that the "underlying rationale seems to be that political asylum ought to be granted individuals in direct confrontation with the state, whether overt or covert, because of a desire not to be involved in the internal political struggles of other states and a recognition that such activities are the only means of effecting political change in many states ... ."

[39] The Applicants say that the crime in this instance was serious, but it was political. The motive was political in the classic sense of the term, as it was an attempt to change the government itself. The means used, on the facts which the Panel ignored, were proportional. The coup participants came to the palace, without ammunition in their tanks, not to kill the president, but to arrest him and it was only after persons in the palace, heavily armed like a fortress, shot at them that an exchange of gunfire took place resulting in the deaths. While it may be argued that the murder of others, beyond the president - himself not a civilian - changed the offence into a non-political one, it is clear that the exchange of gun fire, started by those in the palace, escalated the incident into a violent one. The family and guards were armed. As such the murder of others in the course of the coup does not change the offence to a non-political one.

[40] The Respondent's answer on this issue is to point to the following words from Gil, supra, at page 509:

The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature.

[41] The Respondent says that the murder of the presidential family and others at the palace constitutes an offence of an atrocious or barbarous nature and was grossly disproportionate to the objective of overthrowing the government. To overthrow the government in 1975, the coup conspirators need not have murdered the president's wife and children and other members of his domestic entourage.

[42] It is no answer, the Respondent says, for the Applicants to assert that "it is clear that the exchange of gun fire, started by those in the palace, escalated the incident into a violent one." There is no evidence that the coup conspirators could not have walked away from the palace once the gun fire began. They were on the outside. The fact remains that the coup conspirators murdered the president, his wife and his children. This is nothing short of atrocious and barbarous.

[43] The Respondent points out that in the case Zrig v. M.C.I., [2001] FCT 1043 this Court found that a murder that had been committed during a coup d'etat attempt was a "serious non-political crime." In its reasons, the Court held as follows:

107. Based on the overwhelming and credible evidence to this effect, the Refugee Division concluded that the crime was perpetrated by MTI/Ennahda. The panel relied on the following evidence [at paragraph 249]:

"Three members of al-Nahda involved in an attack in February 1991 on a RCD headquarters in Tunis in which a night-watchman was burnt to death, were sentenced to death and hanged in October 1991." (Exhibit P-6, supra note 98, page 248.)

"Attacks like those directed against the RCD's (Rassemblement Constitutionnelle (sic) Democratique, the government party) central office in Bab Souika (Tunis) in February 1991, which caused the death of one security guard and seriously wounded others, have not been repeated." (Exhibit P-11, supra note 180, page 4.)

111. In short, a rational view of the evidence could be a basis for the panel's finding regarding the Ennahda movement's involvement in the Bab Souika affair.

112. Is that crime a serious non-political crime within the meaning of Article 1F(b)?

113. First, I consider that the arson at Bab Souika may be described as barbarous and atrocious, so that it is harder to say that this was a political crime: Gil, supra.

114. Then, although I admit that the existing regime was repressive in nature, there is no doubt that there is no close and direct causal link between the Bab Souika arson and Ennahda's political objective of establishing an Islamist state in Tunisia. This act of violence is grossly disproportionate to any legitimate political objective. It cannot be regarded as an acceptable form of political protest.

[44] Therefore, The Respondent argues the Panel did not err in concluding that the murder of the president, his wife and his children was a serious non-political crime.

[45] The Panel found that the Principal Applicant's participation in the August 1975 coup constituted a "non-political crime." By systematically applying the test developed in Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508 (Fed. C.A.), I have reached the same conclusion.

[46] One of the witnesses for the Principal Applicant, who described himself as an "expert on Bangladesh and international politics," testified at p.1436 of the Certified Tribunal Record that the coup of August 15, 1975 was politically necessary. He stated as follows:

The people of Bangladesh and the post-1975 governments lamented the death of the president and some of members of his family but never disputed the fact about the political nature of the August uprising. Until the government of Sheikh Hasina came to power, the general consensus was that the August 15 uprising was thrashed upon nation as political necessity and was unavoidable.

[47] The president and his family were the political symbols of power . Military coups are by their nature political.

[48] In order to apply the Gil, supra, test properly, however, it is necessary to evaluate the "proportionality" of the acts in question and whether there was a rational connection between the damage inflicted and a change in the political regime. As was stated in Gil, supra, at para. 42:

The crucial point was not merely that some of the victims were innocent bystanders but, much more importantly, that the attacks themselves were not carried out against armed adversaries and were bound to injure the innocent. Violence of this sort was wholly disproportionate to any legitimate political objective. The appellant's claim failed for the lack of nexus between the crimes and any realistic political objective.

[49] Several sources indicate that the August 1975 coup was carried out against armed adversaries because the president and his family were armed and it was the president's guards who fired the first shots. Other sources deny this. No matter which evidence is accepted, the brutal and systematic killing of the president's family cannot, in my opinion, be regarded as proportional to the objective of removing a hated political figure.

[50] Even if the coup of September, 1975 was directed against an armed president who symbolized a repressive regime hated by many, and even in the context of Bangladeshi politics at the time, where the evidence suggests that excessive and deadly force were not uncommon, the excessive killings that occurred in this case (approximately 20 members of the presidential family, including a young son) cannot be justified as the means for achieving regime change. Even if the day after the coup the civilian government was installed, and Canada was among the countries that recognized it, this does not make the excessive killings politically justifiable.

[51] The Panel arrives at its conclusion on this issue, not by reweighing competing evidence on proportionality in detail but by relying upon the fact that the Bangladeshi Court has convicted the Principal Applicant of what would, in Canada, amount to first degree murder and conspiracy to commit murder. The Panel then goes on to say that "the Panel is persuaded from reading the court judgment that the intent of the conspiracy was to murder the president and his family, "and that" [g]iven all of the above, the Panel finds that there are serious reasons for considering that the Principal claimant has committed a serious non-political crime outside Canada, the country of refuge." The Panel does enough, in my opinion, to satisfy itself and explain why there were serious reasons for considering that a serious non-political crime has been committed by the Principal Applicant outside of Canada. In my opinion, the Panel did not err in this regard.

CRIME AGAINST HUMANITY

[52] The Respondent concedes that the Panel erred in its conclusion that the Principal Applicant should be excluded on the ground that he committed a crime against humanity contrary to Article 1 F(a). I agree with this conclusion, and the issue before me is whether the Decision is sustainable on other grounds.

WRONG QUESTION

[53] The Panel concluded that the Principal Applicant feared prosecution, not persecution, and that had he not committed the crime for which he was convicted he would not have had such a fear of returning to Bangladesh. The Panel focussed on the fairness of the trial and, concluding that it was fair, found this determinative. The Applicants submit that in doing so the Panel asked itself the wrong question.

[54] The Applicants say that the issue before the Panel was whether the Applicants had a well- founded fear of persecution. Clearly prosecution is not persecution, unless on false charges and for political reasons, as these Applicants asserted. However, the Panel, in focussing on the fairness of the trial itself, completely ignored the issue of whether, even given such prosecution, the Applicants faced persecution. The Federal Court of Appeal in Chaudri v. M.E.I., [1986] F.C.J. No. 363 (C.A.) indicated as follows:

Secondly and in any event, the whole gravamen of the Appellant's case is not that he fears being lawfully imprisoned and tortured but rather that he will, in fact, receive the same treatment as his two companions. It will be recalled that the latter had engaged in the same activities as the appellant and had received the same sort of summons. In finding that there is "great uncertainty" and "lack of explanation" with regard to the summons, the Board, in effect, ignores evidence which it had itself found to be credible.

[55] In the case at bar, there was ample evidence before the Panel that the police in Bangladesh routinely torture persons detained, and that people are extra-judicially murdered, including while in detention. The prison conditions contribute to deaths as well for those detained. The Applicants feared, as in Chaudri, supra, not lawful detention, but torture while detained and, while the Court of Appeal refers to 'lawful torture', torture is never lawful.

[56] In reply, the Respondent points out that the Principal Applicant stated in his Personal Information Form (PIF) narrative that he feared persecution by the Awami League government of Hasina. The Panel had to address this claim and determine whether the Applicant feared persecution or prosecution by that government. Thus, the panel did not ask itself the wrong question.

[57] Secondly, concerning the Applicants' alleged fear of being tortured while in detention, the Respondent points out that this Court recently addressed the very same facts in the case of Melendez v. M.C.I., [2003] FCT 346. There the Court wrote as follows:

48. Being held against one's will in adverse prison conditions without legal grounds could arguably constitute persecution, as defined above. However, this is not the end of the analysis. Assuming without deciding that the applicant's interim prison conditions are sufficiently severe to constitute persecution, the applicant must link the persecution with a Convention ground in order to successfully claim refugee status. Thus, the applicant must show that the persecution he would most likely experience on return to Costa Rica is linked to his political status as a PLN member.

49. The Board found that the applicant's detention was linked to alleged wrongdoings which eventually led to a prosecution that if found to be warranted, or if unfounded, curable by the judicial system. I find that this conclusion is not unreasonable. Since the detention is not linked to the applicant's 'political opinion', it cannot be said to have a nexus to a Convention ground.

[58] The Respondents point out that the evidence referred by the Applicants concerning police brutality and torture does not establish a nexus between the Principal Applicant's alleged fear and a Convention ground. Therefore, the Panel did not err in its inclusion finding. I agree with the Respondent on this issue. There was no reviewable error by the Panel in this regard.

IGNORE EVIDENCE - INCLUSION

[59] The Panel indicated that the Principal Applicant feared prosecution, not persecution and no credible evidence had been presented to show that the female Applicant would be persecuted, as none of her family members had been, even during the reign of the Awami League. In reaching these conclusions, the Applicants submit that the Panel erred in law for the following reasons:

1) All of the witnesses who testified that they were aware that the Principal Applicant was elsewhere on the evening and into the morning of the August, 1975 coup, indicated that they did not provide their 'alibi' evidence to authorities in Bangladesh or even to the court-appointed defence counsel. They said that they did not because, if they had, it would have been dangerous for their family members left in Bangladesh. They expected that their family members would be harmed. The Panel ignored this evidence in concluding that the female Applicant would not face persecution. It further ignored evidence that her husband's family had experienced serious problems because of their relationship to him, and as his wife, she is the person in the closest relationship to him. The Panel further ignored the documentary evidence that indicated that close family members of targeted individuals are themselves targeted, including the wife of one of the alleged co-conspirators, who was detained and tortured;

2) The Panel ignored the documentary evidence before it in concluding that the Applicants would not face persecution. It was clear in the documentary evidence that those detained are tortured and may be killed while detained. The Panel must have been aware that the Principal Applicant, having been convicted in absentia of murder, would be detained and interrogated;

3) The Panel made a passing comment about the change in government. It should be noted, however, that the evidence did not indicate a change in treatment of the alleged conspirators who were detained in Bangladesh.

[60] The Respondent points out that, according to their evidence, the Applicants' problems only began when the Awami League, headed by the daughter of the assassinated President, was elected to office. There was no evidence before the Panel that the Applicants had a fear of persecution prior to that time. Therefore, it stands to reason that once that political party (the purported agents of persecution) was voted out of office, as it has been, that there can no longer be an objective basis for the Applicants' fears of being persecuted by the Awami League unless the Applicants adduce evidence to the contrary, which they did not do. See Yusuf v. M.E.I. (1995), 179 N.R. 11.

[61] I agree with the Respondent's analysis on this issue. In my opinion, the Panel made no reviewable error in this regard.

CONCLUSIONS

[62] Behind this Application, in my opinion, lies a justifiable fear that, if returned to Bangladesh, the Principal Applicant at least could face torture and death. This issue will need to be confronted directly if a decision is made to deport him. The Panel, however, was fixed with considering the refugee status of the Applicants. Within the narrow context of a Decision on Refugee status alone, and bearing in mind that the Panel only had to conclude that there were "serious reasons" for considering that the Principal Applicant had committed a serious, non-political offence, I believe the Panel made no reviewable error.

[63] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.

"James Russell"

J.F.C.

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET: IMM-4678-02

STYLE OF CAUSE: A.C. and B.D.

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: THURSDAY AUGUST 7, 2003

REASONS FOR ORDER BY: RUSSELL J.

DATED: December 19, 2003

APPEARANCES BY: Ms. Barbara Jackman

For the Applicants

Mr. Jerimiah Eastman

For the Respondent

SOLICITORS OF RECORD: Ms. Barbara Jackman

596 St. Clair Ave W

Toronto, Ontario, Suite 3

M6C 1A6

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

Date: 20031219

Docket: IMM-4678-02

BETWEEN:

A. C. and B. D. 

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER