Federal Court Decisions

Date: 19971222

Docket: IMM-5294-97

BETWEEN:

     TEJINDER PAL SINGH,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

MULDOON J.:

[1]      Canada is not intended to be a haven for terrorists. Canada is intended to be a haven for refugees - in absorbable numbers, at most. A refugee, however is not a terrorist, by definition. The Immigration Act, R.S.C. 1985, Chap. I-12 as amended bears the pertinent definition of "Convention¹ refugee", being

any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion

(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or ... and

(b) has not ceased to be a Convention refugee by virtue of subsection (2),

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;

* * *

[2]      Subsection (2) is not pertinent here, but the Schedule in which are found sections E and F of Article 1 of the U.N. Convention contains the following:

E. ...

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)

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

[3]      The applicant, Tejinder Pal Singh was and is a member and supporter of Dal Khalsa, a Sikh political group which aims to establish a separate and independent Khalistan in India through violent means. On September 29, 1981, in a viciously dangerous and egotistically stupid effort to promote the establishment of that Sikh homeland, the applicant Mr. Singh, with four others, committed a terrorist act by the piracy of hijacking an Indian aeroplane, diverting it from its scheduled course and into Pakistan at Lahore Airport. Pakistani commandos overwhelmed the Dal Khalsa hijacker pirates and arrested them, luckily apparently without bloodshed although one of the applicant's fellow pirates put his kirpan (a big knife) to the pilot's or co-pilot's throat at one point of time.

[4]      The applicant was later tried and convicted of hijacking in Pakistan (the terrorist crime was commenced in India) by the Special Court for the Suppression of Terrorist Activities (not an exact paradigm of Dicey's rule of law, but there is no evidence of how much of departure it was or is). Tejinder Pal Singh was sentenced to imprisonment for life for his terrorist political crime, as is documented in the filed affidavit of Murray Wilkinson (ex. B) and admitted by Singh's counsel.

[5]      Is the applicant a dedicated terrorist? Upon release, on the commutation of his term of imprisonment in 1994, the applicant crowed to a reporter for The News International (October 19, 1994) thus:

Meanwhile, talking to the News at Gurdwara Dera Sahib, Tajinder [sic] pledged to continue struggle for Khalistan.

To a question, he maintained: "The aim behind hijacking was to highlight our independence case. India should remember that we are born militants and will retaliate against those who will deny us our birth right (Khalistan)."

Asked why the hijacked plane was brought to Pakistan?, he observed: "I would like to quote an example here. A person asked what is the definition of friendship, the answer was two people having the same enemy. I think this answers your question."

(Wilkinson's affidavit, ex. C)

Elsewhere in the same article the applicant is named Taljinderpal Singh.

[6]      Tejinder Pal Singh came to Toronto on May 13, 1995, with a false name, Gurmeet Singh, and a false passport. The Court infers from this that he apprehended that if he did not try to deceive Canada in that way, he would be just turned around and sent back without ever leaving the airport.

[7]      Exhibit A to Mr. Wilkinson's affidavit is the solemn declaration of an immigration officer who, on September 22, 1995, in the company of Ms. L. and Mr. D. two agents of/in the Canadian Security Intelligence Service (CSIS), interviewed the applicant who waived the services of a lawyer. Pertinent passages relate the applicant's admission of participating in the failed hijackinging, and:

-      that he was convicted in Pakistan and has spent the last 13 years in a Pakistani jail ...

-      that the name of his group is the "Dal Khalsa"; ...

-      the [sic] he will be killed by the Indian government if he is sent back to India;

-      that he and four other members of the Dal Khalsa group in 1981 hijacked an Indian Airlines domestic flight carrying passengers to Pakistan in protest in order to get international attention for their cause;

-      that he came to Canada from Pakistan on Pakistani Airlines under a Pakistani passport that was given to him in Pakistan, and arrived at Toronto on 13 May 1995; ...

-      that he came to Canada to save his life, and used the name of Gurmeet Singh when he arrived in Toronto;

-      that he would have stayed in Canada under the name of Gurmeet Singh as he has made a refugee claim under that name to work here and to carry on with his cause using peaceful means;

[8]      Exhibit J to the affidavit is the same immigration officer's recapitulation in June of 1996, of his conversation with the applicant in September of 1995. Some passages are:

Mr. Singh informed me that in 1981 he was an active member of a political organization known as the Dal Khalsa. I know this group to be an extremist terrorist group who is seeking to establish a separate state called Khalistan in India through violent means.

Further Mr. Singh informed me that he and four other members of the Dal Khalsa participated in the hijacking of an Indian Airlines domestic flight. Prior to boarding the flight Mr. Singh and his accomplices were given airline tickets and instructions on how to carry out the hijacking. Mr. Singh indicated his role was to secure the central passenger cabin during the flight and that other members of his team would enter the cockpit and redirect the flight to Pakistan.

...

Upon Mr. Singh's release from custody he was given a fraudulent Pakistani passport by one Gurvinder Singh who Mr. Singh identified as the leader of the Dal Khalsa. Further he was ordered by Gurvinder Singh to travel to Canada where he was to continue to carry out the activities of the Dal Khalsa

Since Mr. Singh's arrival in Canada he has had further ongoing contact and conversation with Gurvinder Singh.

Tejinder Pal Singh informed me that he remains a supporter of the goals of the Dal Khalsa and further that he is an active member of the Dal Khalsa.

Mr. Singh indicated that the fraudulent passport he used to enter Canada was in the name Gurmeet Singh. It was his intention to remain in Canada under that name. At no time was it his intention to disclose his real identity to Canadian authorities.

Near the end of the interview Mr. Singh asked for the return of his bracelets, underclothes, and kirpan. He was told it was unlikely the jail would return those items, in particular the kirpan, for safety and security reasons. Mr. Singh replied that he could not understand why it would be a concern and demonstrated that by using just his thumb he could kill someone.

Mr. Singh was asked where he learned how to do this and rather than answer just smiled and shrugged.

[9]      There is no doubt that Tejinder Pal Singh was convicted of civil passenger aircraft hijacking, and the record evinces no doubt that he is guilty of that crime. He was one of five hijackers acting together in concert. The Pakistani court convicted Mr. Singh and his fellow criminals of the offence described in section 402-A, punishable as prescribed in section 402-B of Pakistan Penal Code, which run (without contradiction by the applicant);

402-A.      Whoever unlawfully, by the use or show of force or by threats of any kind, seizes, or exercises control of an aircraft is said to commit hijacking.

402-B.      Whoever commits, or conspires or attempts to commit, or abets the commission of hijacking shall be punished with death or imprisonment for life, and shall also be liable to forfeiture of property and fine.

[10]      Section 34 of that Penal Code makes each plotter and colleague in a criminal act equally guilty because he or she is party to the common intent.

[11]      Was the crime of which the applicant was convicted the equivalent of the offence contemplated by section 76 of Canada's Criminal Code? It provides:

HIJACKING.

76. Every one who, unlawfully, by force or threat thereof, or by any other form of intimidation, seizes or exercises control of an aircraft with intent

(a)      to cause any person on board the aircraft to be confined or imprisoned against his will,

(b)      to cause any person on board the aircraft to be transported against his will to any place other than the next scheduled place of landing of the aircraft,

(c)      to hold any person on board the aircraft for ransom or to service against his will, or

(d)      to cause the aircraft to deviate in a material respect from its flight plan,

is guilty of an indictable offence and liable to imprisonment for life.

[12]      Tejinder Pal Singh's counsel did not contest the equivalence of the two offences described in each country's criminal law statute, as found by the adjudicator P. Kyla in his or her report dated May 30, 1997. The adjudicator summarized:

... Mr. Singh is also a member of the inadmissible class of persons described in 19(1) (c.1) (i) of the Immigration Act. As he is a person in Canada other than a citizen or permanent resident, he is therefore described in 27(2)(a) - 19(1)(c.1), 19(1)(f)(ii). He is therefore subject to a conditional deportation order pursuant to 32.1(4) of the Act due to his outstanding refugee claim.

     (Wilkinson's affidavit, ex. R, p. 10)

[13]      Here are the provisions of the Immigration Act which make the relationship of the Pakistani Penal Code provisions and section 76 of the Criminal Code so significant:

PART III

EXCLUSION AND REMOVAL

Inadmissible Classes

19.(1) No person shall be granted admission who is a member of any of the following classes:

...

(c.1) persons who there are reasonable grounds to believe

(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or

(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that my be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,

except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;

...

(f) persons who there are reasonable grounds to believe

(i) have engaged in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada,

(ii) have engaged in terrorism, or

(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in

(A) acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, or

(B) terrorism,

except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;

...

27.(2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who

(a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c), [not applicable].

...

(g) came into Canada or remains in Canada with a false or improperly obtained passport, visa or other document pertaining to that person's admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person,

[14]      The applicant Tejinder Pal Singh is a person contemplated by the above recited provisions of the Immigration Act and the adjudicator's conclusions are correct. The adjudicator therefore on February 29, 1996 issued a conditional deportation order because the applicant had made a claim, terrorist that he is, to be himself a refugee. The violent persecutor of innocent civilians now claims that he is persecuted, (not merely prosecuted). Mr. Singh knew full well the dangerous, potentially deadly, "game" in which he was engaged. Every aircraft hijacker who is not a dolt - and Tejinder Pal Singh is no dolt - knows that aeroplane hijackings always end badly; the hijackers virtually never achieve the objectives which they manically fantasize when planning their crime. They always put the innocent passengers at risk of grave injury or death, because hijackers are virtually always shot dead or otherwise overwhelmed by force in the presence of the innocent civilian passengers whom they detain by terror.

[15]      This Court does not pronounce upon the objectives or organizations such as Dal Khalsa or the I.R.A.; and concedes that Mr. Singh and his Dal Khalsa and I.R.A. ilk may be utterly sincere in wanting their organizations to achieve their stated goals. However, this court does pronounce on and against the bloody, savage means they employ in quest of their goals. They voluntarily put themselves at war with civilized society and must expect to face the wrath of such society according to its law - but never torture, of course. Such terrorists are not and can not be Convention refugees, indeed they are, if known and recognized at a port of entry, not even admissible into Canada.

[16]      So, what can the Minister legitimately do about this, or any, terrorist who has attempted to push his or her way into Canada? The Minister is empowered to act pursuant to section 46.01 of the Act. By letter dated June 6, 1996 the applicant was advised that the Minister was considering acting under section 46.01. Since he does not wish to be deported to India, the land of his citizenship, he surely has had ample time to identify and suggest some other country of his choice to take him. Is he boxed in on that account? He knowingly by willful terrorism made his own bed. On June 5, 1997, Mr. Singh's solicitor was advised by letter (exhibit T to Wilkinson's affidavit) of the intention to seek the Minister's opinion pursuant to paragraph 46.01(1)(e)(ii) of the Act, that it would be contrary to the public interest to have his refugee claim determined under the Immigration Act. It is clear on the facts that Tejinder Pal Singh is no refugee and has no claim to such status.

[17]      The cited provisions of the Act run thus:

46.01 (1) A person who claims to be a convention refugee is not eligible to have the claim determined by the Refugee Division if the person

...

(e) has been determined by an adjudicator to be

(i) ...

(ii) a person described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that it would be contrary to the public interest to have the claim determined under this Act.

[18]      In the letter of June 5, 1997, the investigator revealed everything which the Minister would consider, including every document, and invited the applicant's counsel's written representations, arguments and any documentary evidence deemed relevant. Counsel did respond to that invitation. It may be noted that the applicant and his lawyer were informed that there would be "an assessment of the threat you pose to the public in Canada and the possibility of risk to you which could be precipitated by returning you to the country from which you came to Canada, the country of your permanent residence, the country of your nationality or the country of your birth." (emphasis not in original text). Mr. Singh came from Pakistan with a fake Pakistani passport, but, if deported, he will be sent to India, the country of his birth and nationality, since he apparently has never identified a country in which he would feel safer than in India.

[19]      The Minister had before her all the evidence and information presented by a departmental official, together with the "considerable volume of material" forwarded by the applicant's counsel. On December 8, 1997 the Honourable Lucienne Robillard, Minister of Citizenship and Immigration signed her opinion pursuant to subparagraph 46.01(1)(e)(ii) of the Immigration Act to the effect that it would be contrary to the public interest to have Tejinder [sic] Pal Singh's refugee claim determined under the Act, (a copy of which is Wilkinson's exhibit V).

[20]      The applicant attacks the validity of the Minister's opinion, because he says, she perversely did not take account of how badly he will be treated if deported to India. (His counsel admitted that he hijacked the Indian airliner with its innocent passengers, but otherwise he did not emphasize how badly Tejinder Pal Singh treated India, and how he crowed to reporters that he would continue to assault India and its people, instead of attempting to persuade them to the alleged justice of his cause).

[21]      Counsel referred to a recent CRDD decision in which a claimant accused of hijacking was declared to be a Convention refugee and did not have to suffer deportation to India. That is the opinion of that particular CRDD panel. According to the applicant's counsel there is much genuine apprehension that the applicant will be assaulted and tortured once he is in the clutches of the police in India, especially in Punjab, should he elect to go there. India is a big country.

[22]      The United Nations Committee against torture (UNCAT) in Geneva was alerted in September 1997, of the applicant's plight, and now, December 18, 1997, UNCAT reported to the applicant's solicitors that:

Pursuant to rule 108, paragraph 1, of the Committee's rules of procedure, a copy of the [Solicitors'] communication has been sent to the State party [Canada] today, with the request that any information or observations in respect of the question of admissibility should reach the Committee within two months.

In conformity with rule 108, paragraph 9, of the Committee's rules of procedure, the State party has also been requested not to expel Mr. Tejinder [sic] Pal Singh to India, while his communication [i.e. his allegation] is under examination by the Committee.

[23]      The Minister's counsel alleges that UN rules exact that such ex parte correspondence be kept confidential at this stage and that compliance with UN rules prevented her from going into this matter since Canada has not had time even to have the three (Foreign Affairs, Citizenship and Immigration and Justice) Ministers consult in order to formulate Canada's response to that ex parte request. In any event she is not instructed by the government to desist in opposing Mr. Singh's application to stay execution of his deportation order, which is now no longer conditional.

[24]      This Court is not convinced that the applicant has made out all three grounds prescribed in the Toth decision. This Court is not persuaded that the Minister's review of danger to Mr. Singh (a danger, if any, into which he fanatically put himself) was in any way deficient, much less perverse. It is documented in Mr. Wilkinson's exhibit U, pages 5 to 7, under the headline: Removal Risk considerations. This Court would look for less risk if Mr. Singh were a poor victim of persecution for that which he could not change - his colour, race, nationality, even religion, or for having exercised his human rights. If Mr. Singh be at risk, it is because he is the persecutor by terrorism past and still intended and he willingly undertook the risk. Actually the evidence shows that the world's largest democracy has no policy or encouragement of police brutality, and the high profile of publicity of Mr. Singh's case is probably his best protection against any risk of brutal treatment, since the Government of India will wish to avoid dishonour by the unofficial abusive treatment of a returning deportee from Canada. Of course it might yet indict Mr. Singh for the part of his crime which he committed in India, but the risk of prosecution is simply one which he long ago decided he might have to face.

[25]      For the foregoing reasons, this Court dismisses the applicant's application to quash the Minister's opinion. It has not been shown to be irregular according to law and it accordingly stands. As stated above, since there is to be no refugee claim, because the applicant is no refugee, the deportation order is no longer conditional. Mr. Singh is illegally in Canada, he is a terrorist, and is subject to deportation. These conclusions arise, because the Minister has correctly opined that it would be contrary to the public interest to permit a terrorist, a non-refugee, and engage the Refugee Determination Division in a fatuous refugee claim.

     "F.C. Muldoon"

                                             Judge

OTTAWA, ONTARIO

December 22, 1997

__________________

     ¹      The United Nations Convention Relating to the Status of Refugees signed at Geneva on July 28, 1951, including the Protocol thereto signed at New York City on January 31, 1967.