Date: 20020819
Docket: IMM-2769-01
Neutral citation: 2002 FCT 888
BETWEEN:
NARAYAN LAL CHITRAKAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] The Applicant, Narayan Lal Chitrakar is a thirty-one year old male, citizen of Nepal. He fled Nepal on July 24, 1999 and arrived in Canada on August 22, 1999. On May 10, 2001, the Refugee Division ("tribunal") determined that he was not a Convention Refugee.
[2] Although he was not a member, the Applicant was involved with the United People's Front Party (UPF) which was formed in 1990 as a legitimate political party but which in 1994 split into violent and peaceful factions. The violent faction of the UPF became linked to the political arm of the violent and militant Communist Party of Nepal (CPN/Maoists).
[3] On February 13, 1996, the UPF and the CPN/Maoists declared the People's War. Many atrocities were committed against the civilian population.
[4] The Applicant's involvement with the UPF which began in 1991 and continued after the People's War had been launched was in the form of financial contributions.
TRIBUNAL'S DECISION
[5] The tribunal found the Applicant was not a refugee; he is excluded from its definition by the application of section F(a) of Article 1 of the United Nations Convention relating to the Status of Refugees ("Convention") and subsection 2(1) of the Immigration Act, R.C.S. 1985, c. I-2 (the "Act"), which incorporates it into Canadian law, since he participated and supported the UPF's activities and contributed financially to the People's War in spite of his knowledge of the atrocities committed during the People's War.
[6] The tribunal came to this conclusion for the following reasons: 1) the testimony of the Applicant which indicated an active participation within the UPF; 2) from 1996 to 1998 the Applicant contributed approximately 240,000.00 rupees to the People's War; 3) there is no evidence the Applicant tried to dissociate himself from the party before 1998; and, 4) the Applicant's testimony shows that he was aware of the activities of the Party during the People's War and approved of the atrocities committed.
ANALYSIS
1) Breach of duty of fairness
[7] Before considering the analysis on exclusion, it is necessary to examine if the duty of fairness was respected. The Applicant maintains he did not have the opportunity to prepare adequately for the hearing because the notice of intervention of the Minister was vague as it did not specify what paragraph of Article 1F of the Convention would be invoked. I find no merit in this argument.
[8] In accordance with subparagraph 69.1(5)(a)(ii) of the Act, the Minister does not have an obligation to specify which paragraph of Section F of Article 1 of the Convention he will invoke. This provision states:
| 69.1(5) Opportunity to be heard - At the hearing into a person's claim to be a Convention refugee, the Refugee Division
(a) shall give
(ii) the Minister a reasonable opportunity to present evidence and, if the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of this Act are raised by the claim, to question the person making the claim and other witnesses and make representations; and |
69.1(5) Droit de se faire entendre - À l'audience, la section du statut_:
a) est tenue de donner_: (ii) au ministre, la possibilité de produire des éléments de preuve, d'interroger l'intéressé ou tout autre témoin et de présenter des observations, ces deux derniers droits n'étant toutefois accordés au ministre que s'il l'informe qu'à son avis, la revendication met en cause la section E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la présente loi; |
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[9] In Arica v. Canada (Minister of Employment and Immigration) [1995] F.C.J. No. 670, the Federal Court of Appeal concluded the notice from the Minister is for the benefit of the tribunal and not for the Applicant. Further, the issue is whether the Applicant was aware at the hearing that Article 1F of the Convention is involved. Robertson J.A. wrote at paragraph 9:
Against this background, it is apparent that the appellant's argument cannot succeed on the basis of the inadequacy of the Minister's notice. The real issue is whether the appellant and his counsel were at the time of the hearing apprised of and proceeded on the understanding that paragraph (a) of Article 1F was in issue. The appeal record fully supports that understanding.
[10] In the case at bar, the Applicant knew before the hearing the Minister would intervene. At the hearing which involved two separate hearing dates, November 8, 2000 and February 14, 2001, he was informed that the Minister would invoke paragraphs (a) and (c). After this disclosure the Applicant's counsel said they were ready to proceed; she did not ask for an adjournment on the grounds of surprise and she needed time to prepare. She did not ask nor was she refused the right to present evidence on the point.
[11] The Applicant's attitude is understandable because in this case 1F(a) and 1F(c) overlap and there was no reason to believe 1F(b), dealing with non-political crimes, would come into play.
2) Exclusion
[12] Subsection 2(1) of the Act, excludes some individuals from the definition of refugee:
| Convention refugee [...]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;
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réfugié au sens de la Convention [...]
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
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[13] The section F of the Article 1 of the Convention states:
| 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) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations. |
F. 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;
b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés;
c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. |
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[14] The tribunal concluded at pages 7 and 8 of its decision that the UPF "advocates violent human rights abuses" and crimes against humanity were perpetrated during the People's War.
[15] Section F uses the words "serious reasons for considering" to qualify the burden of proof to be met by the Minister. In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 , at page 311, MacGuigan J.A, for the Federal Court of Appeal, stated "[t]he words "serious reasons for considering" [...] must be taken [...] to establish a lower standard of proof than the balance of probabilities."
[16] In Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297, a case based on paragraph 19(1)(c.2) of the Act, the Federal Court of Appeal agreed with the Trial Judge's definition of "reasonable grounds as a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes "a bona fide belief in a serious possibility based on credible evidence"". In Ramirez, supra at paragraph 6, Justice MacGuigan stated there is no difference between the words "reasonable grounds to believe" and "serious reason for considering". He concluded that these expressions require a burden of proof lower than the balance of probabilities.
[17] The objective of Article 1F (a) and (f) of the Convention is therefore to exclude people who have committed, are accomplice in or are associated with international crimes.
[18] The questions in this case are whether the Applicant participated in and supported the activities of the UPF and whether he was aware of the nature of the acts which were committed during the People's War are questions of fact. In accordance with paragraph 18.1(4)(d) of the Federal Court Act, the Court will not intervene unless the tribunal's findings are perverse or capricious or made without regard to the evidence, a standard of review equivalent to the patently unreasonable standard.
[19] In Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at page 844, Justice L'Heureux-Dubé for the Supreme Court of Canada wrote at paragraph 85:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one ... Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision ...
[20] An important principle concerning exclusion is that the mere membership in an organization that committed international crimes is not enough to invoke the exclusion provision. The Federal Court of Appeal said in Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 at paragraph 45:
It is well settled that mere membership in an organization involved in international offences is not sufficient basis on which to invoke the exclusion clause; see Ramirez, at page 317, and Laipenieks v. I.N.S., 750 F. 2d 1427 (9th Cir. 1985), at page 1431. An exception to this general rule arises where the organization is one whose very existence is premised on achieving political or social ends by any means deemed necessary. Membership in a secret police force may be deemed sufficient grounds for invoking the exclusion clause; see Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161 (F.C.T.D.), but see Ramirez at pages 318 et seq. Membership in a military organization involved in armed conflict with guerrilla forces comes within the ambit of the general rule and not the exception.
[21] In Ramirez, supra at page 317, the Federal Court of Appeal established that mere membership in an organization involved in crimes against humanity will be enough when the "organization is principally directed to a limited, brutal purpose, such as a secret police activity".
[22] The tribunal recognized the UPF as a violent organization and its links to the Maoists and the People's War. In Rai v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1163, Nadon J., then of the Trial Division, refused to qualify the UPF as an organization with limited and brutal purposes. He wrote at paragraph 16:
First of all, let me say that the evidence appears to support the view that the UPF/Maoist faction is an organization whose very existence is now premised on achieving political ends by any means deemed necessary. However, I am not prepared to say, on the same evidence, that the UPF/Maoist faction is an organization principally directed to a limited, brutal purpose. It is significant to note that when the applicant joined the UPF in 1991, the party was a political contender with duly elected representatives. It is only in 1996 that the party, in alliance with the Maoist faction, decided that means other than democratic means were going to be employed to achieve political ends.
[23] The Applicant joined the UPF in 1991 and was in charge of the Election Publicity Committee in his constituency during the election that year. He participated actively in the activities of the Party. He organized twenty to thirty rallies in different villages, propagated the ideology and the policies of the Party; received the authorization of the Party to speak for ten to thirty minutes during the rallies. The Federal Court of Appeal stated in Chiau, supra that ""member" was not limited to a person who actively participated in criminal acts, or to one with a membership card whose name appeared on a membership list, but meant simply a person who "belonged to" the criminal organization in question."
[24] The Applicant testified he was not a member of the UPF and only worked during the election in 1991. However, in Bazargan c. Canada (Minister of Citizenship and Immigration), (1996) 205 N.R. 282, the Federal Court of Appeal stated "It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or from outside the organization."
[25] A person can be excluded as an accomplice of the atrocities committed. In Penate c. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79, Reed J. stated:
I do not think there is any dispute concerning the principles set out in the three cases:
[...]
2. An individual who has been complicit in (an accomplice to) an act which is physically committed by another is as responsible for the offence as the person who physically committed the act. Thus, if there are serious reasons for considering that an individual has been complicit in the commission of an international offence that individual will be excluded from obtaining refugee status by operation of section F of Article I.
3. In order to be complicit in the commission of an international offence the individual's participation must be personal and knowing. Complicity in an offence rests on a shared common purpose.
The Ramirez, Moreno and Sivakumar cases all deal with the degree or type of participation which will constitute complicity. Those cases have established that mere membership in an organization which from time to time commits international offences is not normally sufficient to bring one into the category of an accomplice. At the same time, if the organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may indeed meet the requirements of personal and knowing participation. The cases also establish that mere presence at the scene of an offence, for example, as a bystander with no intrinsic connection with the persecuting group will not amount to personal involvement. Physical presence together with other factors may however qualify as a personal and knowing participation.
As I understand the jurisprudence, it is that 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 active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.
[26] What is important in this case is the Applicant's financial contribution to the People's War. The tribunal concluded the Applicant gave a significant amount of money to the People's War with the knowledge and the approval of the violent activities undertaken.
[27] From 1996 to 1998, the Applicant gave substantial amounts of monies to the Party. He paid 10,000.00 rupees per month to the People's War for a period of two years. This amount is significant considering in Nepal the average salary is between 3,0000 to 5,000 rupees per month.
[28] At the beginning of the hearing, the Applicant amended his PIF to include the word "duress" concerning his financial contributions to the Party. In his oral testimony, he said he gave money because he received threats. The tribunal concluded that the amendment was made to enhance his claim. On this point, the tribunal found the Applicant's testimony neither credible nor trustworthy. Taking this element with other evidence, the tribunal concluded the Applicant contributed willingly.
[29] The Applicant went to India twice (in March 1995 and from December 1996 to January 1997) for business even while he was giving money to the People's War. The tribunal wrote at page 7 of his decision "the claimant explained that as long as he was giving money to the People's War, he was safe and that as long as his business was successful, it was financially better for him to remain in Nepal." Before 1998, there is no evidence that the Applicant tried to dissociate himself from the UPF.
[30] In Canada (Minister of Citizenship and Immigration) v. Hajialikhani, [1999] 1 F.C. 181, Justice Reed, at paragraph 41, wrote "There is no doubt that financing crimes makes one complicit therein." The record shows, he knew crimes against humanity were committed during the People's War. Despite this and the tribunal so found, he voluntarily gave a huge amount of money to the Party.
[31] The Applicant believed in the Party and supported its activities (Tribunal Record, Transcript of the hearing, pp. 453-455, 461-462, 470-471).
Q. So you believe in the party till when?
A. 1997.
- Okay.
Q. Does that mean, sir, excuse me, that you only stopped believing in the party in 1997?
A. From 1997, I stopped believing them. I didn't had anything to do with them.
Q. So even though you were giving money under duress in 1996 you still believed in the party?
A. I voted them on 1991, so I believed on that party. That I used to think that they will do something. Maybe they are trying to do something good.
- Okay. Just for purposes of the record, sir, you haven't answered the question. Sir, you see, your testimony, as my colleague pointed out earlier, the credibility of the testimony is very important.
Q. Now, I find it difficult to understand that you responded to Maitre (sic) Lessard by saying that in 1997 you still believed in the party. Which would suggest that during the People's War in 1996, you believed in the party. Is that what you mean to say, sir?
A. What I believe, why I believe on them is before they said that they will start the People's War peacefully, so they will solve the problem on the table not starting terrorize the people. When they start terrorizing the people and killing them, I stopped believing on them.
Q. But while you were giving money during the People's War, according to your testimony, you still believed in the party. See, sir, we would have expected you to have said I gave money because I was threatened and under duress, but I did not believe in the party. That's what one would have expected you to say if, in fact, you didn't believe in the objectives of the People's War. Do you understand?
A. What I mean to say is, what I feel they have to do is not to terrorize people and solve the problem on the table with the government.
Q. So, sir, they were terrorizing you in the meantime since 94, threatening to kill you and your family. But well, not in 94, but in 96, and yet until 97 you believed in them. That is your testimony. Is that correct?
A. I give them money because they threatened to do so.
- Thank you.
[...]
- Okay sir, in your PIF, at Reason 7, okay, you wrote that because of People War, People's War changing to Weapon War in 1997-1998, okay, to work for the party and cooperate being a member, is to take a life of innocent people and to help those people who want Civil War in the country which does not reform the country. Thinking that, I left party and became independent, and wait for my question please. Please wait for my question. That was only a statement. Okay.
Q. So, okay, correct me if I'm wrong, but that statement in your PIF is implying that you were, first, that you were a full member of that organization till 1997 and that till that date you were still working for the party and cooperating with them. So can you explain to me why it's completely not fitting with your testimony at the hearing today?
A. Yes, I can. What I mean to say at that time, until that period I was giving money to that party. I have been forced to give that money. So till then I was giving it to them. And I still believe in that party. Not that much but a little. My membership means to be I believe on them. I trust on them. That is my membership. I don't mean that I'm cut off from the membership.
I became free because after that I decided not to trust them, believe on that party. They never went to they discuss about that thing on the table. The government open the door to discuss about the matters but they never did. From that time what I decided is these party are the terrorist party. After that I stopped believing on that party and I stopped giving them the money. After that they started threatening me.
Q. Sir, you just testified that you stopped giving money when you stopped believing in the party. That's what you just said.
A. From that time I was ready to be killed by them than giving them the money.
Q. Because you stopped believing, that's it?
A. Yeah, I stopped believing on them and I didn't wanted any relation with them, because they were the terrorists.
[...]
Q. So, can you just tell us from the time the People's War started, because you said Maoists were doing some good things and some bad things. From the time People's War started, can you tell us if you believed the Maoists did some good things? And if you say yes, what good things?
A. Yes, they did some good things. A leader from the village who was blaming other people being Maoist, and the Maoist punish them. The person who corrupt the budget for the village development committee they punish them. And the Maoists started killing the innocent people spying on them.
Q. Don't go so fast, sir, because I'm trying to take notes. The Maoists started killing some of them you said?
A. The Maoists did a good thing killing the corrupted people.
Q. They did ...
- Would you repeat the sentence. The Maoists...
A. The Maoists did a good thing killing the corrupted people.
[32] I conclude, based on a transcript review that it was open for the tribunal to find: 1) the Applicant knew of the atrocities committed by UPF's militant wing; 2) he shared the purpose of those acts and that such acts constituted crimes against humanity; and 3) he did not withdraw his financing at the earliest opportunity. In the circumstances the tribunal's decision was reasonable; the Applicant must be excluded as an accomplice of crimes against humanity committed during the People's War.
[33] This judicial review is dismissed. No question for certification is proposed.
"F. Lemieux "
JUDGE
Ottawa, Ontario
August 19, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2769-01
STYLE OF CAUSE: Narayan Lal Chitrakar v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: March 7, 2002
REASONS FOR ORDER of The Honourable Mr. Justice Lemieux
DATED: August 19, 2002
APPEARANCES:
Mrs. Diane N. DorayFOR THE APPLICANT
Mr. Guy Lamb FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mrs. Diane N. Doray FOR THE APPLICANT
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada