Date: 19980311
Docket: IMM-1111-97
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Applicant
- and -
RASANATHAN SINNATHURAI
Respondent
REASONS FOR ORDER
NOËL J.:
[1] The applicant Minister seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration Refugee Board, granting the respondent refugee status.
[2] The respondent, an ethnic Tamil and citizen of Sri Lanka, was born May 26, 1957. In July of 1983, the Liberation Tigers of Tamil Eelam attacked an army truck near the respondent"s village. Following the attack the Sri Lankan military raided the respondent"s village. During the raid the respondent was shot in the leg and arrested. He was then interrogated regarding his family"s political activities. Over the course of the interrogation he was beaten so severely that he is permanently scarred.
[3] The respondent was eventually released from captivity following the payment of a bribe by his mother. He then returned home for a short period to convalesce and organize his departure from Sri Lanka. He left Sri Lanka in May of 1984 and through the assistance of a brother living in France, made his way to Canada in November 1985 whereupon he immediately claimed refugee status.
[4] In January 1987, the respondent became a permanent resident of Canada. Before a determination of the respondent"s refugee status could be made he was convicted on four counts relating to the possession and trafficking of narcotics. The circumstances giving rise to these convictions involved approximately 1,6 kg of heroin, with a street value said to be in the millions of dollars. As a result of his conviction, the respondent was sentenced to thirteen years imprisonment.
[5] On March 13, 1995, an immigration inquiry was held concerning the respondent and a conditional deportation order was issued pursuant to s. 32.1(2) of the Immigration Act. On May 18, 1995, the Appeal Division of the IRB dismissed the respondent"s appeal of the above order.
[6] The respondent"s refugee status claim was finally heard on April 23 and August 28, 1996. In a split decision, the member who sided with the respondent and hence whose decision prevails1 (the "prevailing member") took the position that there were two issues to address. The first was whether, on the basis of the evidence adduced, the respondent was in fact a Convention refugee. The second issue, raised by the Minister, was whether as a result of the respondent"s criminal conviction his claim for refugee status was invalid by virtue of Article 1F(c) of the Convention.
[7] Article 1F(c) provides:
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: |
| . . . |
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
[8] With respect to the first issue, the prevailing member concluded that the respondent was a Convention refugee. On the second issue she found that Article 1F(c) did not invalidate the respondent"s claim.2 As the applicant only takes issue with the second finding, the following discussion relates exclusively to the facts relevant to that issue.
[9] In deciding the second issue the prevailing member recognized that based on the case law, narcotics offences constitute acts "contrary to the purposes and principles of the United Nations".3 However, she took the position that she was nevertheless authorized to "balance" the exclusionary factor provided in Article 1F(c) against those factors favouring the respondent"s inclusion as a Convention refugee.
[10] In support of this approach, the prevailing member relied on various provisions of the Immigration Act which allow for the weighing of the consequences of refoulement against the danger the refugee poses to the Canadian public. Specifically, she observed that under s. 46.01(e) of the Act, a refugee claimant who has been convicted of an offence punishable with a maximum term of imprisonment of 10 years or more, is only ineligible to have his claim determined where the Minister is of the opinion that he constitutes a danger to the public. The prevailing member reasoned that an interpretation of Article 1F(c) that brings into consideration Canadian criminal offenses but precludes balancing the risks entailed by refoulement is incompatible with the administrative scheme of the Act.
[11] The prevailing member also observed that had the respondent committed the same narcotic offences after a positive determination of his claim, he would remain subject to refoulement under s. 53 of the Act, but only if the Minister formed the opinion that he poses a danger to the public. Had this been the case, she surmises that the Minister would surely have taken into account the very promising case officers" reports regarding the respondent. The prevailing member was therefore of the opinion that it would be unfair for the timing of the offence to be determinative of whether the individual may benefit from balancing.
[12] The prevailing member found that the respondent stands in serious jeopardy of being tortured should he be returned to Sri Lanka and that the prospect of persecution (including torture) far outweighs the domestic considerations relating to the offence committed by the respondent. After completing this balancing exercise, she concluded that the respondent is a Convention refugee.
[13] The dissenting member was of the view that the clear line of authority was to the effect that the balancing exercise embarked upon by her colleague was not authorized by the Convention. She concluded that as the crime committed by the respondent came within Article 1F(c) of the Convention she had no choice but to pronounce the exclusion.
[14] It seems clear to me that this last view is the correct one based on the case law.4 There are no decisions which support the type of balancing which the prevailing member embarked upon in this instance.
[15] However, counsel for the respondent suggests that what is significant here is the finding of fact made by the prevailing member that the respondent stands at risk of being tortured in the event that he is returned to his country of origin. Counsel invokes the international Convention against torture to which Canada is a party and specifically Article 3 thereof which provides that no person shall be returned to another state if there are serious grounds to believe that he will be tortured. He states that the adherence of Canada to this Convention justifies the decision of the prevailing member. He adds that while the Court of Appeal in Gonzalez definitely pronounced itself against balancing where exclusion is based on Article 1F(a),5 the Court did not dismiss the possibility that balancing may be justified where exclusion is based on Article 1F(b) and presumably also 1F(c).6
[16] While torture is perhaps the most grievous form of persecution, I find nothing in the Convention which would authorize a different interpretation of its terms by reference to the type or extent of the persecution involved. Furthermore, even though Canada has ratified the Convention against torture, it has not been incorporated into the Immigration Act with the result that it is difficult to conceive how its principles could govern the scope and application of that Act.
[17] I therefore come to the conclusion that it was not open to the prevailing member to grant the applicant refugee status having regard to the invocation of the exclusion clause by the Minister. The matter is therefore returned before a differently constituted panel with the direction that it determine whether or not the respondent is excluded by virtue of Article 1F(c) independently of any other question.6
[18] Counsel for both parties asked that the question as to whether the prevailing member was entitled to "balance" the exclusionary factor stated in Article 1F(c) of the Convention having regard to the risk of torture which awaits him in his city of origin be certified. Counsel for both parties also suggested that as the case of Pushpanathan remains pending before the Supreme Court, the question underlying that decision and which arises here7 should also be certified.
[19] I have acceded to these requests and both questions will accordingly be certified.
Marc Noël
Judge
OTTAWA, ONTARIO
March 11, 1998
__________________
1 69.1(10) provides "... in the event of a split decision the decision favourable to the person who claims to be a Convention refugee shall be deemed to be the decision of the Refugee Division."
2 The dissenting member found that Article 1F(c) did in fact invalidate the claim. She therefore did not find it necessary to address the first issue.
3 Pushpanathan v. the Minister of Employment and Immigration, [1996] 2 F.C. 49 (F.C.A.). Appeal pending before the Supreme Court.
4 See for instance Gonzalez v. Canada 24 Imm L.R. (2d) 229 (F.C.A.), Canada v. Mehmet, [1992] 2 F.C. 598 (FCA), Murugadas Thamotharampillai v. Canada, [1994] 3 F.C. 99, Yasin v. Canada 117 F.T.R. 256.
5 War crimes and crimes against humanity.
Gonzalez (supra) at p. 238. I do not believe that Gonzalez supports this contention. Although Mahoney J.A. did not foreclose the possibility of balancing where Article 1F(b) is concerned, his leaving the question open was a consequence of the particular wording of that provision:
Perhaps the modifier "serious" in 1F(b) would make possible the balancing suggested but there is no room for it in 1F(a). Article 1F(c) contains no such modifier.
6 I do not believe that the Act would authorize me to simply direct that the matter is disposed of in accordance with the dissenting member"s decision. The only instance where a single member"s decision can be determinative under s. 69.1(10) is where it is favourable to the applicant. Hence, it seems that the matter must again be formally determined although there is no conceivable doubt as to the outcome.
7 That is whether trafficking in narcotics is an act contrary to the purposes and principles of the United Nations under Article 1F(c) of the Convention.