Federal Court Decisions

Date: 20051209

Docket: IMM-2003-05

Citation: 2005 FC 1682

Ottawa, Ontario, December 9, 2005

PRESENT:      THE HONOURABLE MR. JUSTICE MARTINEAU

BETWEEN:

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Applicant

and

AKASH DEEP SINGH MAAN

Respondent

REASONS FOR ORDER

[1]                This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated March 8, 2005, in which Mr. Akash Deep Singh Maan (the respondent) was determined to be a Convention refugee and a person in need of protection pursuant to sections 96 and 97 respectively of the Act.

FACTUAL CONTEXT

[2]                The respondent is a citizen of India. On September 10, 2000, he was requested by the militant group Babbar Khalsa (BK) to transport packages, which would be handed to him by BK sympathisers, and to bring those packages to his school. The respondent testified that he believed the packages contained drugs.

[3]                The respondent alleged that his initial refusal to comply with the request led to immediate threats to his life. In response to these threats, the respondent accepted the task of transporting the packages, which he claims to have performed on five separate occasions.

[4]                The last time the respondent transported the packages was on January 10, 2001. On this day the respondent claimed to have been intercepted by the police, arrested and detained for four days. During the detention he was tortured so that he would disclose to police the identity of the persons with whom he had been collaborating.

[5]                Upon his release, the respondent claimed to have received medical attention for injuries sustained as a result of the torture.

[6]                On July 10, 2001, the police came to his residence. He was taken to the police station where he was asked to identify a person suspected of being a member of the BK group. He was detained and tortured for three days before being released. Again, he was medically treated for injuries.

[7]                On September 6, 2002, the respondent arrived in Canada on a student visa. He studied in Brampton, Ontario until November 2003, at which time he proceeded to seek asylum.

DECISION UNDER REVIEW

[8]                The Board found the respondent credible and concluded that he is a Convention refugee by virtue of section 96 of the Act and a person in need of protection by virtue of paragraphs 97(1)a) and b) of the Act. The Board also determined that the exclusions to Convention refugee status found in article 1F of the United Nations Convention Relating to the Status of Refugees (the Convention) did not apply to the respondent in the present matter.

PARTIES' SUBMISSIONS

[9]                The applicant accepts the credibility findings made by the Board. However, the applicant questions the validity of its conclusion that the exclusions found in article 1F of the Convention do not apply to the respondent. In this respect, the applicant submits that the Board erred in law in imposing a higher standard of proof than that of "serious reasons for considering" when deciding whether the exclusions found in article 1F of the Convention applied. The applicant further submits that the Board's general conclusion is not supported by the evidence or as the case may be, by adequate reasons. According to the Applicant, the conclusion is totally gratuitous with respect to the non-applicability of the exclusions stipulated in articles 1F(a) and 1F(c) of the Convention. The applicant also claims that in failing to assess the nature of the BK, a terrorist organization, the Board mistakenly concluded that the respondent was not an accomplice to illegal acts and erred in law in not addressing whether the exclusions found in article 1Fof the Convention applied to the respondent. With respect to the exclusion contained in article 1F(b) the applicant submits that the Board failed to assess the seriousness of the alleged crimes committed by the respondent. The applicant further submits that the Board misapplied the defence of duress in failing to clearly state that the threat was imminent and inevitable. Finally, with respect to the Board's conclusions that the respondent is a Convention refugee and a person in need of protection, the applicant submits that the Board's conclusion regarding the absence of a viable internal flight alternative (IFA) is patently unreasonable.

[10]            The respondent submits that the decision of the Board, which found the respondent to be a Convention refugee by virtue of section 96 of the Act and a person in need of protection by virtue of section 97 of the Act, is not patently unreasonable. According to the respondent, the decision taken by the Board on the exclusion is one of pure fact. In this regard, the respondent submits that the Board did not ignore relevant evidence nor did it act capriciously in making its decision. Respondent's counsel argues, based on the evidence on record, that the respondent was not an accomplice of BK. In that case, the Board took into account the testimony of the respondent, namely to the effect that his life was threatened, which would be followed by the death of his family members if he refused to comply to deliver the parcels containing drugs. Accordingly, it is submitted that there was an "imminent" danger of death. With respect to the inclusion finding, including the absence of an IFA, the respondent submits that the conclusion is based on the evidence and is not patently unreasonable.

ANALYSIS

[11]            Section 98 of the Act incorporates article 1F of the Convention into domestic law. The aforementioned legislative provisions read as follows:

[12]            Before going further, it is worthwhile to reproduce the relevant portions of the Board's reasoning on the exclusion issue:

In the analysis of the facts, and argumentation brought by the Minister's representative, there remains little doubt that the claimant did in actual fact transport the bags of drugs (believed to be drugs) for persons he believes to be BK militants. The claimant has admitted that he performed that task on five different occasions. The series of events were initiated when the claimant was seventeen years of age and consequently he was then a minor. He was confronted by a militant group, well known to this tribunal, and well documented as to its intentions, who, in turn, threatened his life and that of his family members should he not comply to their demands. The tribunal considers several elements in this particular aspect of the analysis. They are:

a)        The jurisprudence shows that the offence committed by the claimant may be considered a "serious crime". However, in Brzezinski some elements of a serious crime have been analysed, but surely not all elements considered. The tribunal questions whether admitting to have transported, what he believes were drugs, a serious crime. If he has not been convicted of any crime, but suspected of having participated in the commission of a crime, is he still subjected to the provisions of article 1 F, section a), b) and c). Section a) begins thus: he has committed a crime [...] b) he has committed a serious non-political crime [...] c) he has been guilty of acts [...]; he has not been charged of an offence, nor of course was he convicted, and has cooperated with police to identify at least one BK militant.

b)        Should the crime to which the Minister's representative refers in his arguments be valid, has consideration been given to the fact that the claimant was seventeen years of age at the time the alleged crimes were initiated! Would his alleged crimes be subjected to the "Juvenile Delinquent's Act" if the offences were committed in Canada? If so, does it still remain, under this Act, a serious crime?

c)        In a defence of "Duress", the tribunal must take into account the testimony, both oral and written, to the effect that the claimant's life was threatened. Also, had he not complied to the BK militants' threats, would his family have been in imminent danger to their lives and well-being. Reference is made to Ramirez, supra, footnote 31, at 327-328. (...)

d)        As regards an IFA, the claimant had not informed his family of the situation in which he had been involuntarily involved. He testified that he hoped he would never have to tell his family and hoped he would not be caught. He was not being paid to perform the task of carrying what may have been drugs nor did he benefit in any way from his actions. The only benefit derived from the situation was that he and his family would not be killed if only he did what was imposed upon him at gunpoint. With a defence of "duress", in Ramirez, at 327-328, "the Court upheld the finding of duress as it agreed there was an imminent, real and inevitable threat to the claimant's life [...]". The tribunal is satisfied that the claimant's actions were the result of threats to his life and that of his family members. He testified in a credible and trustworthy manner.

(...)

f)         The claimant cooperated with police by identifying at least one person who had been part of the three persons believed to be BK militants. His cooperation with authorities resulted in additional threats to his life and well-being, even from the officer in-charge of the police station. (...) The tribunal believes it unreasonable for the claimant to hope for protection from police who have twice tortured him to assure his cooperation. In exhibit M-13, at pages one and two, "A Danish Immigration Service report on a fact-finding mission to Punjab conducted from 21 March to 5 April 2000 stated that, while the opinions of sources differed on whether militant groups still existed in Punjab, the following is written: 'it was a widely held opinion that insofar as such groups did exist, their activities in Punjab nowadays were very limited - almost imperceptible' (sec. 6.2). The main groups identified by the various sources as still operating in Punjab were the Khalistan Commando Force BABBAR KHALSA". The tribunal is therefore satisfied that it is plausible that the BK does in fact exist and is active in the Punjab, where the claimant's family now resides. The fear he has expressed is credible.

[13]            While the Board seems to mix the absence of IFA and of state protection with the issue of exclusion, which would have been better addressed elsewhere in its decision, it is apparent that there are other serious flaws in the Board's reasoning leading to its conclusion that Article 1F of the Convention does not apply to the respondent.

[14]            First, the Board, in its analysis, never stated clearly the applicable standard of proof, while it insisted that the respondent "has not been charged of an offence, nor was he convicted". It must be stressed that the standard of proof in determining whether an individual has committed, or been complicit in crimes or acts mentioned in article 1F of the Convention is that of "serious reasons for considering". It has been determined that this standard of proof is more than a mere suspicion, but less than the civil standard of a balance of probabilities (see Morenov. Canada(Minister of Employment and Immigration), [1994] 1 F.C. 298 (F.C.A.), 107 D.L.R. (4th) 424). When applying the "serious reasons for considering" standard, it is important to distinguish between proof of questions of fact and the determination of questions of law. The "serious reasons for considering" standard of proof applies only to questions of fact. In the present case, the respondent has, in fact, admitted that he has transported a number of times what he believes were drugs. Whether these facts form the elements of a crime or an act contrary to the purposes and principles of the United Nations as mentioned in article 1F of the Convention is a question of law (see Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 116, 254 D.L.R. (4th) 200).

[15]            Second, the Board failed to provide clear conclusions on the nature of the BK. Respondent's learned counsel claims that the Board fully clarified the nature of the BK. Declaring that the BK "is a militant group well known to this tribunal, and well documented as to its intentions", and also active in the Punjab, is not a sufficient analysis in determining the purpose of the organization. This error of law suffices to set aside the impugned decision and to refer the matter back to the Board for redetermination (see Canada (Minister of Citizenship and Immigration) v. Hajialikhani, [1999] 1 F.C. 181 at paragraph 36, [1998] F.C.J. No. 1464 (F.C.T.D.) (QL); Canada(Minister of Citizenship and Immigration) v. Muto, 2002 FCT 256 at paragraph 13, [2002] F.C.J. No. 318 (QL)).

[16]            Third, it is undisputed that the BK is a terrorist organization that engages in drug trafficking in order to purchase arms and ammunition to pursue its goal. I observe that all three exclusion clauses are engaged. While the type of drugs the respondent transported is unknown, according to exhibits M-6 ("Babbar Khalsa International, Terrorist Outfit, Punjab", p. 3) and M-5 (p. 6), profits from the heroin trade are used to finance operations of Sikh and other extremist militants in India, and the BK is involved in heroin trafficking. By failing to specifically address clauses 1F(a) and 1F(c), the Board erred in law. Indeed, the respondent admitted, albeit reluctantly, to have effectively given his support to the BK by carrying drugs five times over a period of four months. He had knowledge of abuses committed by the BK. He did not opt to disassociate with the BK at the first opportunity. Given the fact that the terrorists left after handing the drugs to him, it appears that he had the opportunity to run away. If the Board had correctly observed the relevant jurisprudential rules, it would have raised the following questions: did the respondent's actions - i.e. the transport of drugs in the context of drug trafficking to finance the purchase of arms and munitions - contribute to acts of violence by the BK which constitutes international crimes (bombing, kidnapping, etc.)? Could the respondent have disassociated himself from these crimes? Can it be said that he was in a situation of an imminent or inevitable danger?

[17]            As a knowing participant of an organization principally directed to a limited, brutal purpose, an individual is likely to fall under the exclusions found in article 1F of the Convention. Apparently, the Board excused the respondent from any personal and knowing participation in illegal activities of the BK because he may have been a minor. While the Board notes that "[t]he series of events were initiated when the claimant was seventeen years of age and consequently he was then a minor", this latter factor is irrelevant, and relying on such reasoning clearly constitutes an error of law. What counts here is not the age of the respondent but the degree of his "personal and knowing participation" in the activities of a group suspected of committing international crimes (Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282 (F.C.A.); Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178 (F.C.A.)).

[18]            Fourth, with respect to the application of clause 1F(b) of the Convention, the Board "questions whether admitting to have transported, what [the respondent] believes were drugs, [is] a serious crime" and therefore comes within the ambit of the provisions of article 1F, since the respondent "has not been charged an offence, nor of course was he convicted, and has cooperated with police to identify at least one BK militant". This is a clear error of law. In the present case, the respondent has, in fact, admitted that he has transported, a number of times, what he believes were drugs. In this context, the fact that the respondent was not charged or convicted and that he has cooperated with the Indian authorities after having been intercepted by the police bears absolutely no relevance in considering whether or not one could have "serious reasons for considering" that he has committed a "serious crime".

[19]            In Zrig v. Canada(Minister of Citizenship and Immigration), 2003 FCA 178 at paragraph 3, F.C.J. No. 565 (QL), the Federal Court of Appeal answered the following question affirmatively:

Are the rules laid down by the Federal Court of Appeal in Sivakumar v. Canada, [1994] 1 F.C. 433, on complicity by association for purposes of implementing Article 1F(a) of the United Nations Convention Relating to the Status of Refugees, applicable for purposes of an exclusion under Article 1F(b) of the said Convention?

[20]            In fact, according to his narrative and testimony, on five occasions, the respondent carried a bag full of drugs in his backpack for the BK. Had the respondent engaged in similar conduct in Canada, he would have been subject to prosecution of an offence such as drug trafficking for which he would have been liable to imprisonment for life (see Sections 2(1) and 5 of the Canadian Controlled Drugs and Substances Act, S.C. 1996, c. 19). While a strict equivalence does not necessarily have to be made between the provisions of Indian criminal law and the Canadian criminal law, considering the decisions of Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (F.C.A.) and Xie v. Canada (Minister of Citizenship and Immigration), 2003 FC 1023, [2004] 2 F.C.R. 372, aff'd 2004 FCA 250, [2005] 1 F.C.R. 304, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 418 (QL), the relevant Canadian provisions can be used as guidelines to assess the seriousness of the offence. Also, according to M-23 (the Indian Narcotic Drugs and Psychotropic Substances Act, pp. 10-11, 13-15), had the respondent been charged for the same offence in India, he would have been subject to conviction of an offence for which a minimum prison term of ten (10) years or more could have been imposed. Indeed, the courts have determined that drug trafficking can constitute a serious non-political crime with regards to section 1F(b) of the Convention: Chan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 547 (F.C.T.D.) (QL), rev'd on other grounds [2000] 4 F.C. 390 (F.C.A.); Malouf v. Canada (Minister of Citizenship and immigration), [1995] 1 F.C. 537, aff'd on other grounds, [1995] 1 F.C.J. No. 1506 (F.C.A.) (QL); Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 73, 160 D.L.R. (4th) 193. However, in this case, the Board merely questions, on two occasions (at page 4 of its reasons), whether the acts admitted by the respondent can be considered a serious non-political crime. The Board never specifically answer this question. This constitutes an error of law.

[21]            In conclusion, the Board's analysis with respect to the application of article 1F of the Convention is perfunctory and cannot stand. In view of the serious omissions in the Board's analysis outlined above, it is not necessary that I examine the other issues raised by the applicant, which are whether or not the Board misapplied the defence of duress, and with respect to its overall conclusions, whether or not the Board's finding that there is no viable IFA is patently unreasonable in the circumstances. However, I will add that the defence of duress is not one that is easily demonstrated. The claimant must indeed establish that he acted under the threat of a real danger in order to avoid grave and imminent peril(Ramirez, supra, at 327-28; Canada(Minister of Citizenship and Immigration) v. Hussain, 2002 FCT 209 at para. 3,[2002] F.C.J. No. 274 (F.C.T.D.) (QL)).

DIRECTIONS

[22]            Paragraph 18.1(3)(b) of the Federal Court Act, R.S.C. 1985, c. F-7, allows the judge on a judicial review application to refer a matter back for determination in accordance with directions. According to the Court of Appeal in Turanksaya v. Canada(Minister of Citizenship and Immigration) (1997), 145 D.L.R. (4th) 259 at paragraph 6, F.C.J. No. 254 (F.C.A.) (QL):

The "directions" which the Trial Division is authorized to give under s. 18.1(3)(b) will vary with the circumstances of a particular case.    If, for example, issues of fact remain to be resolved it would be appropriate for the Trial Division to refer a matter back for a new hearing before the same or differently constituted panel depending on the circumstances.    That, however, is not the case here.    The only issue to be resolved by the Trial Division was whether the Refugee Division had erred in law in determining the respondent not to be a Convention refugee because of her former habitual residence in the Ukraine. It is implicit in the decision of Simpson J. that the matter was referred back for determination on the record.    The appellant raised no issue before her by way of judicial review with respect to findings of fact.    It follows, therefore, that no issue of that kind remains unresolved.    We are satisfied, in the circumstances, that Simpson J. exercised her discretion within the limits of paragraph 18.1(3)(b) by leaving the final determination to the Refugee Division on the basis that, with the error of law corrected, it declare the respondent to be a Convention refugee.

[23]            In view of the general conclusion reached above, the impugned decision shall be set aside and the matter shall be returned to the Board for redetermination. However, despite the errors of law made by the Board, this Court shall refrain from determining whether the respondent is a Convention refugee or a person referred to in Article 1F of the Convention. The final answer to this question depends on a reassessment by the Board of the relevant facts of this case in light of the applicable legal principles.

[24]            In the present case, the Board's findings as to the respondent's credibility were not challenged by the applicant. In fact, the only substantial issues before the Court have been errors of law. Therefore, it would be unjust and unnecessary in these circumstances that a new and full hearing, where the respondent would be compelled to re-present his claim, take place before a different Board member. Therefore, I will refer the matter back to the same Board member to reassess, solely on the basis of the record, the areas in which errors of law have been identified in these reasons. Such redetermination shall be made in accordance with general principles regarding the level of complicity and the application of exclusions found in article 1F of the Convention (see Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, 89 D.L.R. (4th) 173; Sivakumar v. Canada (Minister of Employment and Immigration (C.A.), [1994] 1 F.C. 433, [1993] F.C.J. No. 1145 (QL)).

[25]            As such, and in accordance with the discretion that has been granted to this Court pursuant to subsection 18.1(3) b) of the Federal Courts Act, the directions to the Board are as follows:

a)       Apply the proper test, as stated by the case law referred to in the present Reasons for Order, in considering whether or not there are "serious reasons for considering" that the respondent has committed the acts contemplated by the exclusion clause 1F of the Convention;

b)       Perform a sufficient analysis concerning the nature of the BK to determine the respondent's degree of participation in and/or complicity with the organization. While they will have to be adapted to the present situation, the following factors have been identified by this Court in the past: (1) the nature of the organization; (2) the method of recruitment; (3) the individual's position/rank in the organization; (4) the individual's knowledge of the organization's atrocities; (5) the length of time spent in the organization by the individual; and, (6) the individual's opportunity to leave the organization (see Ali v. Solicitor General of Canada, 2005 FC 1306, [2005] F.C.J. No. 1590and cases cited herein);

c)       Specifically address clauses 1F(a) and 1F(c) of the Convention;

d)       Determine whether the acts admitted by the respondent can be considered a serious non-political crime within the meaning of clause 1F(b) of the Convention;

e)       The reassessment shall be made by the Board without prejudice to the right of the applicant to argue that the defense of duress does not apply and/or that there is a viable IFA;

f)         The Board shall provide its supplementary reasons in writing to declare the respondent to be a Convention refugee, or to exclude him on the basis of Article 1F of the Convention, and/or to find that he has a viable IFA, as the case may be.

[26]            No question of general importance has been proposed for certification and none shall be certified here by this Court.

"Luc Martineau"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-2003-05

STYLE OF CAUSE:                           The Minister of Citizenship and Immigration v. Akash Deep Singh Maan

PLACE OF HEARING:                     Montreal, Quebec

DATE OF HEARING:                       November 29, 2005

REASONS FOR ORDER:                MARTINEAU J.

DATED:                                              December 9, 2005

APPEARANCES:

Annie Van Der Meerschen	FOR THE APPLICANT
Odette Desjardins	FOR THE RESPONDENT

SOLICITORS OF RECORD:

John H Sims, Q.C. Deputy Attorney General for Canada	FOR THE APPLICANT
Odette Desjardins	FOR THE RESPONDENT
Montreal, Quebec