Federal Court Decisions

Date: 20050923

Docket: IMM-8686-04

Citation: 2005 FC 1306

Ottawa, Ontario, September 23, 2005

PRESENT:      THE HONOURABLE MR. JUSTICESHORE

BETWEEN:

NADEEM AKHTER ALI

Applicant

and

THE SOLICITOR GENERAL OF CANADA[1]

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                To be or not to be a member with a shared common purpose of a movement or an organization, if choice is implied, bears responsibility. How is it possible not to know, not to hear, not to see and, yet, to be an integral member, voluntarily!

[2]                With respect to the existence of a shared common purpose, a simple denial, even if credible,

...cannot suffice to negate the presence of a common purpose. A plaintiff's actions can be more revealing than his testimony and the circumstances may be such that it can be inferred that a person shares the objectives of those with whom he is collaborating.[2]

It is much too simple to say that one is unaware of barbaric actions of an organization in order to try to distance oneself from these barbaric actions. If, as in the present case, an individual lives and works in a country where persons around him are disappearing and where one hears of persons arrested and tortured, it appears to me, to be totally unbelievable that one would not have knowledge of what is taking place.[3]

JUDICIAL PROCEDURE

[3]                This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (IRPA)[4] of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on September 9, 2004, dismissed the Applicant's claim

or "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.

BACKGROUND

[4]                The Applicant, Mr. Nadeem Akhter Ali, a 36-year old citizen of Pakistan, alleges that he joined the Muttahida Quami Movement (MQM) (although spelled by IRB as "Mutlahida") group in 1987, attended at the party office for unit 183 every day and participated in many party rallies and conventions.

[5]                In 1988, when the MQM won the elections and formed a coalition with the government, Mr. Ali started working as an assistant to the finance secretary or the information secretary in his unit. However, soon after, the police began to arrest MQM leaders and workers and many went into hiding.

[6]                Mr. Ali went to Karachi and, in the early days of the Nawaz Shariff government, got a job in Karachi with the Metropolitan Corporation as a member of the MQM. In 1992, the MQM Haqiqi faction did not agree with Altaf Hussain, the leader of the MQM party and the party split. Members of the MQM were asked to join the MQM (H) faction and Mr. Ali went into hiding. Once, while he was writing mottoes on a wall, two members of the MQM (H) group tried to shoot him but the gun did not fire and Mr. Ali ran away. Mr. Ali decided to leave Pakistan in 1994 and went to the Dominican Republic and later to the United States where he remained illegally. In 2003, Mr. Ali came to Canada and filed a refugee claim.

DECISION UNDER REVIEW

[7]                The Board decided, after considering all of the evidence, that Mr. Ali was not a Convention refugee, as he does not have a well-founded fear of persecution for a Convention ground in Pakistan, nor is he a person in need of protection for the following reasons.

[8]                The Board found that, with respect to the material elements of the story, on a balance of probabilities, Mr. Ali was not deserving of protection and is excluded under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (the Convention).

[9]                The Board found that there is no serious possibility that Mr. Ali would face a risk to life, or risk of cruel and unusual treatment or punishment, or danger of torture, if he were to return to Pakistan.

ISSUES

[10]            1. Was exclusion a determinative issue under Article 1F(a) of the Convention?

2. Whether Mr. Ali is complicit in the crimes of the MQM is essentially a question of fact requiring an evaluation of his particular circumstances.[5] The Federal Court has enumerated six factors which should be considered in determining whether an individual is complicit in crimes against humanity:

            (1)        the nature of the organization;

            (2)        the method of recruitment;

            (3)        position/rank in the organization;

            (4)        knowledge of the organization's atrocities;

            (5)        the length of time in the organization; and,

            (6)        the opportunity to leave the organization.

An application of these factors to the present case confirms Mr. Ali's complicity.

ANALYSIS

[11]            Matters involving Article 1F(a) of the Refugee Convention have been raised by Mr. Ali's involvement with the Mohajir Qaumi Movement (MQM)[6] in Karachi from 1987 to 1994. The MQM is known to be a perpetrator of crimes against humanity and the Minister submits that Mr. Ali is complicit in those crimes by virtue of his role in the organization-particularly as a party worker for Unit 183.

Exclusion from Protection: Article 1F(a)

[12]            Section 98 of IRPA states that persons referred to in Article 1F(a) of the Refugee Convention are not Convention refuges or persons in need of protection.[7] Article 1F(a) states:

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;...

Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes;...

Burden and Standard of Proof

[13]            The burden of proving that Mr. Ali should be excluded from protection lies on the Minister. The Minister had to demonstrate that there are "serious reasons for considering" that Mr. Ali has "committed" an excludable crime. This standard of proof requires something more than suspicion or conjecture, but something less than proof on a balance of probabilities.[8]

Crimes against Humanity

[14]            In order to find that Mr. Ali is excluded, it is necessary to find him responsible for committing specific crimes against humanity. One of the international instruments drawn up to make provisions with respect to crimes against humanity is the Rome Statute of the International Criminal Court (Rome Statute).[9] Article 7 of the Rome Statute includes murder and torture in its definition of crimes against humanity. Canada's Crimes Against Humanity and War Crimes Act specifically endorses and incorporates the definition of crimes against humanity from the Rome Statute, stating that crimes described in Article 7 are crimes against humanity according to customary international law.[10]

[15]            The documentary evidence indicates that the MQM committed serious human rights violations against the civilian population, including other political groups, during the period that Mr. Ali was an activist. The MQM has frequently been characterized as a very violent organization in the disclosure documentation provided by the Minister (M-2, pp. 3, 6, 9, 18-21, 30, 45, 68, 71, 86, and 92). Examples of statements confirming the violent nature of the MQM are as follows:

(1)        "...the patterns of violence associated with MQM activities is clear, and there is near unanimous agreement that the MQM has made use of violence throughout its history." (M-2, p. 3)

(2)         "The MQM's activities within Pakistan are inevitably connected with violence. Every strike that is called comes with the price of violence, with either fatalities and injuries, or destruction of property." (M-2, p. 9)

Murder

[16]            The MQM's involvement in murder is repeatedly confirmed in the documentation (M-2, pp. 2, 7, 11, 18-21, 38, 59). Some specific examples are as follows:

(1)         "In addition to the political and charitable wings of the organization, there are also allegations that it runs a paramilitary wing that has been held responsible for thousands of deaths, mainly within Karachi..." (M-2, p. 2)

(2)         "The 1987-1989 period was marked by violence between the MQM and the Jiye Sindh Movement, an organization fighting for the rights of 'native' Sindhis, and between the MQM and the Punjabi-Pukhtoon Ittehad (PPI), an outfit comprised of armed extremists from the Pukhtoon and Punjabi communities. The violence most often took the lives of non-combatants as all sides randomly attacked civilians." (M-2, p. 7)

(3)         "...the various government campaigns against MQM militants has resulted in hundreds of deaths while inter-ethnic and inter-group fighting has killed thousands within Karachi and Hyderabad." (M-2, p. 11)

(4)         "[1990] was the year when MQM played horrible role by unleashing a reign of terror and blood letting in Karachi and Hyderabad, it set example of the extent to which it could to impose a minority view on the majority. 400 persons were eliminated in the first six months of 1990, and many more were kidnapped and made hostage. The months of February and May saw the most killings, with MQM terrorists going on a killing spree to punish political dissent." (M-2, p. 38)

Torture

[17]            The MQM's involvement in torture is also confirmed repeatedly in the documentation (M-2, pp. 6, 59, 67, 74-5, 86, 91, 108). Specific examples are as follows:

(1)         "Torture cells allegedly maintained by the MQM(A) were discovered in which party members were alleged to have tortured and sometimes killed dissidents and members of other parties." (M-2, p. 67)

(2)         "Efforts to discredit the Altaf faction as a 'criminal organization' were aided by the army's allegations of having uncovered 23 MQM torture cells where 'hundreds' of political opponents and party dissidents had been tortured and killed" (M-2, p. 86)

(3)         "Reports that the MQM uses torture cells against political opponents and party dissidents have been around for years..." (M-2, p. 91)

(4)         "The MQM faction under Altaf Hussain was regarded as a criminal organisation and this view was supported by the army's claims to have uncovered MQM torture cells and arms caches." (M-2, p. 108)

These reports and allegations of the MQM's involvement in torture-which are repeated here by such respected organizations as Amnesty International, the IRB Research Directorate, and the UK Home Office-provide serious reasons for considering that the MQM tortured its political opponents and dissenters.

[18]            The Minister alleged that Mr. Ali is legally responsible as an accomplice for the crimes of murder and torture perpetrated by the MQM during his service as a party worker and honorary office holder.

Complicity-The Responsibility of Accomplices

[19]            A person will be held responsible for committing crimes against humanity when complicit in those crimes as an accomplice. The responsibility to accomplices was established by Article 6 of the Charter of the International Military Tribunal (IMT Charter), one of the leading international instruments referred to in Article 1F(a).[11] Article 6 of the IMT Charter states:

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

Les dirigeants, organisateurs, provocateurs ou complices qui ont pris part à l'élaboration ou à l'exécution d'un plan concerté ou d'un complot pour commettre l'un quelconque des crimes ci-dessus définis sont responsables de tous les actes accomplis par toutes personnes en exécution de ce plan.

[20]            Whether one is complicit depends on the facts of the case, particularly the extent of knowledge of an organization's crimes and the degree of participation in or support of those crimes. The Federal Court has assessed the complicity of accomplices in many cases and that jurisprudence leads to the conclusion that Mr. Ali's action and inaction are sufficient to make him complicit in the MQM's crimes against humanity.

[21]            The starting point for the Federal Court's analysis of the complicity of accomplices is the Court of Appeal's decision in Ramirez v. Canada (The Minister of Employment and Immigration) (C.A.).[12] Mr. Justice MacGuigan started with the premise that mens rea is required before one can be found complicit and understood mens rea to be embodied in personal and knowing participation. He stated:

I find that the standard of "some personal activity involving persecution," understood as implying a mental element or knowledge, is a useful specification of mens rea in this context. Clearly no one can "commit" international crimes without personal and knowing participation. (para. 15)

[22]            Mr. Justice MacGuigan went on to establish "personal and knowing participation" and a "shared common purpose" as the essential requirements for a finding of complicity, formulating the following test:

At bottom, complicity rests...on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it. (para. 18)

Factors for Determining Complicity

[23]            Whether Mr. Ali is complicit in the crimes of the MQM is essentially a question of fact requiring an evaluation of his particular circumstances.[13] The Federal Court has enumerated six factors which should be considered in determining whether an individual is complicit in crimes against humanity:

            (1)        the nature of the organization;

            (2)        the method of recruitment;

            (3)        position/rank in the organization;

            (4)        knowledge of the organization's atrocities;

            (5)        the length of time in the organization; and,

            (6)        the opportunity to leave the organization.

An application of these factors to the present case confirms Mr. Ali's complicity.

            (1)        Nature of the Organization

[24]            If an organization has a limited, brutal purpose, personal and knowing participation in a shared common purpose to commit excludable crimes may be assumed by membership alone. The MQM does not have a limited, brutal purpose and, accordingly, complicity must be established by Mr. Ali's personal and knowing participation in the MQM's crimes. That participation and Mr. Ali's shared common purpose with the MQM is analyzed below.

            (2)        Method of Recruitment

[25]            Mr. Ali joined the MQM voluntarily and remains a loyal supporter to this day. He was under no pressure to either join or remain associated with the MQM.

            (3)        Position/Rank in the Organization

[26]            Mr. Ali referred to himself as a "party worker" in both his Personal Information Form (PIF) narrative (para. 1) and testimony. A letter from the MQM International Secretariat dated May 10, 1998, defines an MQM worker as follows:

A worker of the MQM is a person who voluntarily joins the party and, having understood its political ideology, the aims and object of the struggle, actively devotes himself to the party's political activities. He normally has active and continuous affiliation with the party. He undertakes the work according to the party's instructions and guidance. Most importantly, a worker observes party discipline at all times. He is also obliged to make himself importantly, a worker observes party discipline at all times. He is also obliged to make himself available to the party as and when the party needs his services. In short a worker is a person upon whom the party can entrust responsibility according to his devotion and ability.[14]

[27]            Mr. Ali was appointed an "Honourary Office Holder" (Assistant Finance Secretary) commencing in 1988 and, thus, had some leadership responsibility within his MQM unit. He was one of the core 6 to 12 active workers in Unit No. 183,[15] went to the Unit office everyday, and was one of 8 to 10 representatives from his Unit to attend "think tank" meetings and information sessions given by Altaf Hussain at MQM headquarters in Karachi. He said that he was invited to these meetings because he was an "ideologist" who was very loyal to the party.

[28]            Mr. Ali testified that he collected donations on behalf of the MQM, distributed pamphlets, "chalked" party slogans, and participated in rallies and conventions. His unit collected considerable donations, anywhere from Rs. 25,000 to Rs. 60,000, depending on the occasion. The money went to support rally and convention expenses as well as the monthly expenses for Unit 183 (rent,

electricity, etc.). The rallies were held in his local area to celebrate election victories, but otherwise MQM rallies were held on large grounds or parks. He participated in these rallies and conventions where his role was fundraising, chalking, and putting up banners.

[29]            In Sivakumar, supra, Mr. Justice Linden described the connection between rank or position in an organization and complicity as follows:

In my view, the case for an individual's complicity in international crimes committed by his or her organization is stronger if the individual member in question holds a position of importance within the organization. Bearing in mind that each case must be decided on its facts, the closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization's purpose in committing that crime. (para. 10)

[30]            The Court finds that Mr. Ali's position and responsibility within the MQM supported an inference of knowledge and a shared common purpose vis-à-vis the organization's crimes.

            (4)        Knowledge of Atrocities

[31]            The Significance of Knowledge of Atrocities and Lending Effective Support:

In Penate v. Canada(Minister of Employment and Immigration),[16] the Court held that knowledge of activities and lending effective support was sufficient to satisfy test for complicity. As stated by Madam Justice Reed:

... a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself), but who lends his support, will be considered to be an accomplice. A shared common purpose will be considered to exist. (para. 6)

[32]            Madam Justice Reed also approved the following conclusion by the refugee tribunal:

By embracing the goals of the army and by lending his effective support he accepted the darker aspects of the operations conducted by the army and became an accomplice in the international crimes committed by the army... (para. 6)

The Court finds that this reasoning applies to Mr. Ali.

[33]            In El-Kachi v. Canada(Minister of Citizenship and Immigration),[17] the Court found that knowledge of activities satisfies the mens rea element required for complicity (personal and knowing participation or a shared common purpose). Mr. Justice Blanchard cited the accomplice test from Penate, supra and stated that, in view of his experiences during 16 years in the South Lebanon Army (SLA) and the documentary evidence, the applicant had knowledge of the nature and scope of the criminal activities in which the SLA was involved. The conclusion that the mens rea element was satisfied was based on El-Kachi's knowledge of the SLA's crimes and his failure to disassociate himself therefrom.[18] Mr. Justice Blanchard stated:

In the case at bar, after being unavoidably aware of the criminal nature of several SLA activities, the applicant did not dissociate himself from them at the first opportunity of doing so without risk... The evidence showed that the applicant made no effort to dissociate himself from the SLA at the first opportunity. He simply continued in his position of officer and by doing so, with full knowledge of the atrocities committed by the SLA, implicitly supported the SLA's activities.

In the case at bar, I consider that the applicant has demonstrated personal and knowing participation in the crimes committed by the SLA, thus satisfying the requirement of mens rea. (paras. 30-31)

Mr. Ali was an MQM Activist

[34]            Mr. Ali fits the following profile of a typical MQM activist prepared by York University's Centre for International and Security Studies:

The typical MQM activist is 20 to 30 years of age, and feels constrained by the Quota system. As for the paramilitary wing, there are estimates that the armed element of the MQM numbers around 3,000 gunmen. The core of the MQM paramilitary consists of 200 members from each of Karachi's 20 sectors that have taken loyalty oaths to the organization. The next level of membership are the 'party workers', primarily in their 20s and 30s. These party workers are very loyal to the MQM and have come to view street clashes and armed confrontations as a legitimate form of struggle. [19]

[35]            Mr. Ali was 20 years old when he joined the MQM and was very active until he left Pakistan just before he turned 27. He was affected by the quota system when he attempted to enter the armed forces and was unable to find a job after graduation.[20]

[36]            A letter from MQM International Secretariat dated May 10, 1998 states: "Activist is a term generally used by the newspapers to define the workers belonging to the MQM".[21]

Denial of Knowledge Not Credible

[37]            Mr. Ali admitted that there was no law and order in the country, especially in Karachi during the time of his involvement with the MQM.[22] However, even though the MQM was the dominant group in Karachi (M-2, p. 7), Mr. Ali did not admit that it had any role at all in the violence.

[38]            Mr. Ali was questioned regarding statements in the Board's disclosure documentation confirming the MQM's involvement in various forms of violence, including murder and torture. His testimony related to this documented violence as follows:

(1)        The existence of an MQM armed faction: Mr. Ali stated categorically that there was no such group within the MQM. He said that he had heard about an MQM armed faction in newspapers and magazines, and even asked his unit and sector in charge about it, but never personally saw it and never saw MQM members carrying weapons at all.

(2)         Strikes: Mr. Ali said that the MQM called strikes to raise its voice and to let the government know that it had power. Regarding our evidence that every strike called by the MQM "comes with the price of violence, with either fatalities and injuries, or destruction of property" (M-2, p. 9), however, he said that this was not happening in the Central District where his unit was situated.

(3)        MQM as a "Terrorist" Group: When asked about a document that describes the MQM as a terrorist group, Mr. Ali said that the MQM is a very peaceful political party-the most peaceful political party-and that reports otherwise were government misrepresentations.

(4)        Reputation for Violence: Mr. Ali stated that prior to joining the MQM in November 1987 he was not aware that the MQM had a reputation for violence and had never read any news reports indicating that the MQM was responsible for violence.

(5)        Street Battles: Mr. Ali said that the MQM had no arms or ammunition and were not involved in street fighting. He said that the Mohajirs were allowed to protect themselves in their homes, but not on the streets.

(6)        Extortion: Mr. Ali indicated that the MQM did not practice extortion (bhatta) (M-2, pp. 92, 115). He said that when he and a partner were collecting donations they tried to convince people to contribute to the MQM; if they refused, they simply left. He said that he knows of only one person who beat up a shop owner who refused to contribute and that person was ousted by the party in 1989.[23] In general he stated that he never heard about bhatta being practised by the MQM and that if it were happening in his area he would have known about it.

(7)        Treatment of MQM Dissidents: Mr. Ali stated that he did not know that MQM dissidents were killed. All he knew was that they were not permitted to take part in any activities and MQM supporters would not talk to them or associate with them in any way. This was the greatest punishment that the MQM meted out to its dissidents and people were scared of this type of sanction. He also stated that if other MQM workers were involved in violence against or murder of dissidents, he would have known about it.

(8)         Murder: Mr. Ali stated that he was not aware of any people being killed by the MQM at all.

(9)         Torture Cells: Mr. Ali saw reports and pictures of MQM torture cells in news bulletins, but considered the reports to be 100% fake and not believed by anyone. He later added that if the MQM did have torture cells they would have to be in the Central District.

[39]            In Shakarabi v. Canada(Minister of Citizenship and Immigration),[24] the Court found that professed ignorance of human rights abuses may be found not to be credible. Mr. Justice Teitelbaum stated:

It is much too simple to say that one is unaware of barbaric actions of an organization in order to try to distance oneself from these barbaric actions. If, as in the present case, an individual lives and works in a country where persons around him are disappearing and where one hears of persons arrested and tortured, it appears to me, to be totally unbelievable that one would not have knowledge of what is taking place. (para. 25)

[40]            The MQM's reputation for violence (M-2, pp. 21-2, 30-4), possession of arms (M-2, pp. 43, 69), violent strikes (M-2, p. 9), mistreatment of dissidents (M-2, p. 9), extortion (M-2, p. 92), and involvement in street battles (M-2, p. 82), murder (M-2, pp. 38, 65) and torture (M-2, pp. 67, 86), are all well established in the documentation. Mr. Ali's claim to be unaware of these things, or to deny their existence, is not credible. There are serious reasons for considering that if Mr. Ali did not personally commit crimes against humanity, at a minimum he was aware that the MQM regularly

committed murder and torture and supported the commission of these crimes as a loyal party worker.

[41]            Mr. Ali's lack of credibility regarding the MQM's violence and his knowledge of it is clear from both the contrast between his evidence and the documentation and the internal inconsistency of his testimony. One example of this involves the founders of the MQM (Haqiqi), Afaq Ahmed and Aamir Khan. Mr. Ali seemed to be well informed regarding these individuals who he said were in high positions with the MQM before the split.[25] When read a statement indicating that they had both been "top members of MQM's armed wing" and "responsible for incidents of urban terrorism"

(M-2, p. 121), he said that he had never heard this. On the contrary, he said that they were well known because they were good speakers. Given his familiarity with Afaq Ahmed and Aamir Khan-who founded the organization that he described as killers and "cruel and brutal thugs" (PIF narrative, paras. 5, 10)-it is not reasonable to believe that Mr. Ali did not know of their association with armed violence when they were MQM leaders.

[42]            Another example involves the two Haqiqi supporters whom Mr. Ali alleges tried to shoot him in February 1994. When his counsel asked him how he knew these guys were Haqiqi supporters, he said that they told him that they belonged to Haqiqi. When asked about this statement, he said that in fact he did recognize them and that they had both previously been with his unit. One joined before him and the other in 1987, and one had been an active member. (He later changed his story to say that Gogi, the more active one, had actually been a member of Unit 180, not his unit.) He claimed that he had never seen these guys be violent before joining Haqiqi-he had seen them have disagreements, but not taking this type of violent action. Mr. Ali's testimonial contortions and inconsistencies on this point result from his attempt to maintain his claim that the MQM was a peaceful, unarmed, non-violent political party. Unfortunately, it is not reasonable to believe that Mohajirs who are totally peaceful while with the MQM suddenly become armed thugs when they join Haqiqi.

[43]            A third example of Mr. Ali's lack of credibility is seen in his denial that he knew of the MQM's association with violence before he became a party worker in 1987. This is both not credible on its face and inconsistent with other statements made by Mr. Ali. In 1986 and 1987, there were several reports implicating the MQM in significant incidents of violence in Karachi and elsewhere in the Sindh province and on October 31, 1987, just before Mr. Ali joined the MQM, the MQM called a general strike in Karachi that resulted in 2 deaths and 85 injuries in Karachi and riots in Kotri and Hyderabad (M-2, p. 21). Mr. Ali said that whenever anything happens the government blames the MQM and that in his home he read the Jang newspaper, a paper that he later described as always writing against the MQM.

[44]            A final example involves the MQM's involvement in extortion. The MQM's practice of extortion is confirmed by the Federation of American Scientists (M-2, pp. 40, 43), Human Rights Watch (M-2, p. 59), Amnesty International (M-2, p. 71), and the US Department of State (M-2, p. 115). It is described in detail in a 1996 IRB Research Directorate paper on the MQM:

Most political parties and factions in Karachi collect bhatta (protection money) from businessmen, shopkeepers, traders and ordinary citizens, which they use to arm and maintain their militias. An age-old' practice in Karachi and other parts of Pakistan, bhatta collection reportedly became 'much more deadly and organized' in the late 1980s and early 1990s when 'the MQM and some PPP activists [came to] the forefront of this practice'. The practice became especially prevalent in Central and East districts, where it was considered a 'routine affair,' with party goondas (musclemen) approaching people at their residences. Money is extorted at gunpoint or with threats, and those who refuse to pay are beaten and their businesses or property damaged. While bhatta is collected by both MQM factions in Karachi, the Haqiqi faction has acquired 'notoriety' in the practice. [26]

[45]            Given that bhatta collection is described as an "age-old", "routine" practice, "especially prevalent in the Central and East districts" of Karachi-and regarding which the MQM came to the forefront in the late 1980s and early 1990s-Mr. Ali's denial of this widespread practice and his involvement in it is not at all credible.

            (5)        Length of time in the Organization

[46]            Mr. Ali has been loyally associated with the MQM for 17 years and this factor supports a finding of complicity. Mr. Ali was an MQM party worker for 7 years (1987 to 1994) and a loyal MQM supporter for 10 more years (1994 to 2004). Since leaving Pakistan he joined local units in the US and Canada, took instructions from the unit in charge regarding immigration matters, attended MQM meetings, and donated money to the MQM in the US and Canada. In spite of the documentation regarding human rights abuses by the MQM discussed at this hearing, Mr. Ali said that he is still loyal to the MQM and will do what he can to support it.

            (6)         Opportunity to Leave the Organization

[47]            Mr. Ali admitted that he could have resigned from the MQM at any time without any risk to his personal safety.

Mr. Ali's Complicity

[48]            Mr. Ali's work on behalf of the MQM, combined with his knowledge of its commission of crimes against humanity, makes him a complicit accomplice in its crimes even if he did not personally commit excludable crimes. In Harb v. Canada (Minister of Citizenship and Immigration), [27] a recent Court of Appeal decision, Mr. Justice Décary confirmed that once the organization with which one was associated has committed excludable crimes and the requirements for complicity imposed by precedent are met, the Article 1F(a) of the Convention exclusion applies even if the specific acts committed by the individual are not crimes against humanity (para. 11). With respect to the existence of a shared common purpose, Mr. Justice Décary stated that a simple denial, even if credible,

...cannot suffice to negate the presence of a common purpose. A plaintiff's actions can be more revealing than his testimony and the circumstances may be such that it can be inferred that a person shares the objectives of those with whom he is collaborating. (para. 27)

[49]            An additional factor establishing Mr. Ali's complicity in this case is his involvement in fundraising for the MQM. In Canada(Minister of Citizenship and Immigration) v. Hajialikhani[28] the claimant's involvement in soliciting funds for the Mujahdeen was a factor in establishing his complicity. Madam Justice Reed stated: "There is no doubt that financing crimes makes one complicit therein" (para. 41).[29] Similarly, in Pushpanathan v. Canada(Minister of Citizenship and Immigration),[30] Mr. Justice Blais stated: "The applicant, through the trafficking in narcotics-which is essentially the financing of crimes-makes him complicit in support the LTTE" (para. 48). Since violence was a regular part of MQM operations (associated, for example, with its strikes, rallies, and murder and torture of opponents and dissidents), Mr. Ali's fundraising for the MQM can be equated with financing its crimes.

Widespread or Systematic

[50]            An additional legal requirement commonly accepted as part of the definition of crimes against humanity is that the crimes must generally be committed on a widespread or systematic basis.[31] "Widespread" has defined by the International Criminal Tribunal for Rwanda (ICTR) as "massive, frequent, a large-scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims" and "systematic" as "thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources."[32]

[51]            The MQM committed murder in the thousands (M-2, pp. 2,11) and ran cells for years where hundreds of opponents and dissidents were tortured (M-2, pp. 2, 11), and collected bhatta as a regular practice in Karachi (M-2, p. 86). Accordingly, these crimes against humanity were committed on a widespread and/or systematic basis before, during, and after the period that Mr. Ali served as a party worker for Unit 183.

Link to Specific Crimes

[52]            The RPD is generally required to link a claimant with specific crimes against humanity. However, if Mr. Ali is found not to be a person in need of protection, the requirement to link to specific crimes is relaxed.

[53]            The need to identify specific crimes is traced back to Sivakumar where Mr. Justice Linden stated:

The importance of providing findings of fact as to specific crimes against humanity which the refugee claimant is alleged to have committed cannot be underestimated in a case such as this where the Refugee Division determined that the claimant has a well-founded fear of persecution at the hands of the Sri Lankan government... (para. 33)

[54]            In Castillo v. Canada (Minister of Citizenship and Immigration),[33] Mr. Justice Jerome noted that one of the concerns in Sivakumar was that the claimant would face persecution if returned to Sri Lanka and the Court of Appeal wanted to ensure that if important rights were taken away from the claimant there was a strong reason for doing so. In Castillo, however, the Board determined that since there was only a minimal risk of persecution should the claimant be returned to Peru, "Consequently, the same rights were not at stake as in Sivakumar and the Board was not under as strict an obligation to link the claimant to specific crimes" (para. 8). Accordingly, if it is found that Mr. Ali does not have a well-founded fear of persecution, the Court is not under as strict an obligation to link him to specific crimes.

CONCLUSION

[55]            The Respondent has provided compelling, credible, and corroborated evidence[34] supporting the conclusion that the MQM has committed widespread and systematic crimes against humanity and Mr. Ali was complicit in those crimes. The facts as demonstrated establish that the MQM was responsible for the widespread and/or systematic murder and torture of civilians and that Mr. Ali was a knowing and active participant in the MQM's activities in Nazimabad and Karachi. Even if he never inflicted the pain or pulled the trigger, he was part of the MQM's operations and must have been aware of its atrocities.

[56]            In conclusion, there are serious reasons for considering that Mr. Ali has been an accomplice in crimes against humanity, falls within the parameters of Article 1F(a) of the Convention, and should be excluded from protection in Canada.

ORDER

            THIS COURT ORDERS

1.         The application for judicial review be dismissed.

2.         No question is certified.

"Michel M.J. Shore"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                                       IMM-8686-04

STYLE OF CAUSE:                                       NADEEM AKHTER ALI

                                                                        v.

                                                                        THE SOLICITOR GENERAL OF CANADA

PLACE OF HEARING:                                 TORONTO, ONTARIO

DATE OF HEARING:                                   September 7 2005

REASONS FOR ORDER

AND ORDER BY:                                         The Honourable Mr. Justice Shore

DATED:                                                          September 23, 2005

APPEARANCES:

Mr. John Grice                                                  FOR THE APPLICANT

Mr. Ladan Shahrooz                                          FOR THE RESPONDENT

SOLICITORS OF RECORD:

DAVIS & GRICE                                             FOR THE APPLICANT

Toronto, Ontario

JOHN H. SIMS Q.C.                                       FOR THE RESPONDENT

Deputy Minister of Justice and

Deputy Attorney General