Docket: IMM-1668-02
Neutral citation: 2003 FCT 289
Ottawa, Ontario, the 10th day of March, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
GUNANIDHI SHARMA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board"), dated March 13, 2002, wherein the applicant was denied refugee status and was excluded pursuant to article 1F(b)_ of the United Nations Convention Relating to the Status of Refugees.
[2] The applicant, Gunanidhi Sharma, is a 41 years old citizen of Nepal. He was educated in India but returned to Nepal in 1984, where he worked as a teacher for two years, and then was involved in the family business of farming. At one point, he also opened a clothing store. The applicant alleged that he was influential in the area where he lived because of his father's prominent status. Apparently, his father was an astrologist and had many student followers. His father was also involved in the business of lending money to individuals.
[3] In 1990 the applicant joined the United People Front ("UPF") (also referred to as the "Maoist party"), a communist party, which was a legal political party at the time. However, in 1994, the UPF split into two factions because of different beliefs and views. The applicant opted for UPF (B) ('B' for the leader Baburam), the illegal faction of the UPF. The other half, UPF (V), is still a legal political party in Nepal.
[4] The applicant was involved twice in stealing the land titles of local farmers, kept in banks as collateral for loans. The first time was in May 1996, where 8 other Maoists were involved, and the second time was in April 1997, where about 18 others were involved. Both times, either knives and guns were used to commit the robbery.
[5] The applicant alleged that these thefts were more or less "Robin Hood's" type of actions, taking from the rich and giving to the poor. However, the applicant's responsibility in these thefts were to take names of the people who wanted to recover their deeds, recruit them to the UPF, and in return for their involvement and membership the applicant would return their farm deeds to them.
[6] On a few occasions the applicant was arrested, questioned and beaten by the Nepalese authorities because of his involvement in the illegal party and in the robberies. The events caused him to fear for his well-being in Nepal and so he left his country to go to the United Kingdom. There, he was refused the Convention refugee status and was ordered deported. On a false Danish passport, the applicant travelled to Canada and arrived on August 14, 2000. He claimed protection from Canada four days later.
BOARD'S DECISION
[7] The Board determined that the applicant was not a victim of persecution, but rather he was the subject of prosecution in Nepal. The Board noted that the applicant chose the UPF (B), the illegal faction of the party, and deliberately committed crimes for which he alone was responsible. The Board compared the crimes to the offence of 'armed robbery' in the Canadian Criminal Code.
[8] The Board noted that in his UK refugee application, the applicant was not believed to be a political activist. It found that there were serious doubts that he is whom he contends to be, with regard to his political activities in Nepal.
[9] The Board believed that the applicant committed armed robberies for personal notoriety and to seek respect as he believed his father had. Referring to the evidence on file, the Board concluded that there was nothing to confirm that the applicant was a leader of his party in his locality, except from his own testimony. It determined that the offences were not politically motivated.
[10] In applying the test in Gil v.Canada (M.E.I.), [1995] 1 F.C. 508 (C.A.), the Board determined that the applicant failed the test on Section 1F(b) on all counts.
ISSUE
[11] The applicant admitted that the crimes he committed were serious, but he contested the Board's conclusion that the crimes are non political. Therefore, the issue the Court needs to determine is whether the Board erred in fact and/or in law in determining that the crimes committed are not political in nature and that the applicant is excluded from the Convention refugee definition.
ANALYSIS
[12] I would like to first address what standard of review applies to the Board's decision to exclude the applicant pursuant to Article 1F(b). The applicant submitted that the nature of the problem is one of mixed facts and law. I agree with this submission because the Board had to assess the facts in relation with the legal analysis found in the case law relating to the exclusion clause. However, I do not agree that the standard is correctness. In my opinion, the standard of review which must be applied in questions of mixed facts and law is reasonableness simpliciter, or in other words, whether the Board was "clearly wrong" as per Cihal v. Canada (M.C.I.), [2000] F.C.J. No. 577 (F.C.A.), where Evans J.A. wrote at paragraph 18:
Whether the admitted facts satisfied the statutory standard is a question of mixed fact and law within the expertise of the Board: Nina v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1747, (F.C.T.D.; A-735--92; November 24, 1994), para 28. On such a question, the Board is entitled to a measure of judicial deference and the Court should not intervene unless satisfied that the Board was clearly wrong: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
[13] I will now turn to the substantive issue at bar: whether the Board erred in fact and/or in law in determining that the crimes committed are not political in nature. To better understand the context of the arguments, It is important to reproduce article 1F(b) of the Convention, which was incorporated into the schedule of the Immigration Act, R.S.C. 1985, c. I-2:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
...
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; ...
[14] Although the applicant admitted that his crimes were serious, he argued that his crimes were politically motivated and therefore he should not be subject to the exclusion clause.
[15] In order to determine whether a crime is political in nature, the "incidence test", as enunciated by Hugessen J.A. (as he then was) in Gil, supra p. 509, must be met:
Case law on extradition, rather than refugee claims, in the United Kingdom, the United States and elsewhere has developed the so-called "incidence" test for determining whether or not an offence was of political character. The first requirement of the test is that the alleged crimes must be committed in the course of and incidental to a violent political disturbance such as a war, revolution or rebellion. The "political offense" exception is thus applicable only when a certain level of violence exists and when those resorting to violence are seeking to accomplish a particular objective such as to bring about political change or to combat violent political opposition. The second branch of the test is focused on the need for a nexus between the crime and the alleged political objective. The nature and purpose of the offense require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. 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.
[16] More particularly, paragraph 152 of the UNHCR Handbook [Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees] reads:
152. In determining whether an offence is "non-political" or is, on the contrary, a "political" crime, regard should be given in the first place to its nature and purpose i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common-law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature. [my emphasis]
[17] The applicant admitted that the Board applied the proper test, but argued that it did not properly appreciate the facts when relating them to the test. Regarding the first part of the test, whether the actions were committed within the context of a rebellion, the applicant claimed that the documents on country conditions confirm there was a Maoist rebellion raging in Nepal at least since 1996. The fact that this uprising was happening does not automatically mean that the robberies were done in that framework. The Board had reasons to determine that the crimes did not promote a political cause, but rather that the applicant committed them for self-esteem and to gain respect from the community.
[18] In respect of the second part of the test, that the crimes ought to have a nexus with what the rebels seek, the applicant asserted that the Board was inconsistent when it concluded that the applicant did not show that he was a rebel nor that he had a well-defined cause, but gathered instead that the applicant saw his actions as "Robin Hood" actions to help the poor. The applicant claimed that a "Robin Hood" type of action is certainly a clear political philosophy and has a nexus with what rebels seek. Moreover, the applicant contended that the Board misunderstood the primary purpose of the crimes; they were not carried out to recruit members but to reinstate the land titles to the poor.
[19] I disagree with these contentions because as the applicant admitted, his "Robin Hood" actions were not completely altruistic. Indeed, the applicant recognized that he was blackmailing the people who wanted their land titles back, requiring them to become members of the UPF (B) and to pay money for their membership if they wanted to obtain their deeds. In my opinion, this dilutes the alleged political nexus of their crimes. In any event, the robberies of the land titles were not committed with the object of overthrowing, subverting or changing the government of Nepal nor of forcing it to change its policies.
[20] The applicant further alleged that the actions were not disproportionate with what was sought; there was no destruction of property, nor casualties. Having found that the crimes were non-political, I do not think that it is necessary to determine whether the actions were proportionate to the relief sought in committing the crimes. However, the Board did assess it:
"(3) armed robbery, with knives and guns, in which he admittedly participated in order to free people from loans which they had obtained from the state or from another banking institution, at the risk of people's lives, is disproportionate with the potential sale of a 2 rupee membership card and hopeful personal notoriety."
[21] On a last matter before concluding, I noted that the Board simply did not believe the applicant's story. He did not have the necessary credibility to obtain a positive conclusion. The transcript of the hearing supports the Board's conclusion.
[22] In conclusion, I concur with the respondent and find that the Board's decision that the armed robberies committed by the applicant were not political in nature is based on the Board's own interpretation of the facts and on the evidence on file. I agree with the Board's reading of the facts, but in any event, it is well established that it is not the duty of this Court to reassess the facts and impose its own view of the matter on a question of fact unless the finding is patently unreasonable. Therefore, I will dismiss this application for judicial review.
[23] Counsels did not propose any certified question, therefore no question will be certified.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review of the decision of the Immigration and Refugee Board, dated March 13, 2002, is dismissed.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1668-02
STYLE OF CAUSE: GUNANIDHI SHARMA
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal
DATE OF HEARING: 25-February-2003
REASONS FOR [ORDER or JUDGMENT] : [AUTHOR]
DATED: March 10, 2003
APPEARANCES:
Me Jean-François Bertrand FOR PLAINTIFF /
APPLICANT
Me Annie Van der Meerschen FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
BERTRAND, DESLAURIERS
83, St-Paul, West,
Montreal, Quebec H2Y 1Z1 FOR PLAINTIFF/APPLICANT
Department of Justice of Canada
Complex Guy-Favreau
200, René-Lévesque Blvd. West
East Tower, 5th Floor
Montreal, Quebec H2Z 1X4 FOR DEFENDANT/ RESPONDENT