Date: 20000629
Docket: IMM-5050-98
BETWEEN:
SIDDIQUI NADEEM MAHMOOD
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Wednesday, June 21, 2000)
HENEGHAN J.
[1] This is an Application for Judicial Review relative to a Decision of the Convention Refugee Determination Division of the Immigration Refugee Board.
[2] The Decision dated September 14th, 1998 determined that the Applicant, Mr. Siddiqi Nadeem Mahmood, is excluded from the Convention under Article 1 F(a).
[3] Convention refugee is defined in Section 2(1) of the Immigration Act as follows:
| "...Convention refugee means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion (i) is outside the country of the person's nationality and is unable, or by reason of that fear, is unwilling to avail itself of the protection of that country, or (ii) not having a country of nationality is outside the country of the person's former habitual residence and is unable, or by reason of that fear is unwilling to return to that country and (b) has not ceased to be a Convention refugee by virtue of (2), 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..." |
[4] Section (F) provides:
| "...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..." |
[5] In this decision the Applicant was excluded by virtue of Article 1 F(a).
[6] I have also looked at the decision of this court in Poblete-Cardenas v. Minister of Employment and Immigration (1994), 74 F.T.R. 214. At paragraphs 10 - 13, Associate Chief Justice Jerome, as he then was, reviewed three of the leading cases dealing with this exclusion clause.
[7] I am going to read briefly from paragraph 10, a decision of Madam Justice Reed in Penate et al v. Minister of Employment and Immigration (1993), 71 F.T.R. 171:
| "As stated by Reed, J., in her recent analysis of these cases: |
| "... The burden of proof which must which must be met by the Minister to demonstrate that the Convention does not apply to a given individual is less than the balance of probabilities. That is there is no need for the person to have been convicted or even charged with an international offence..." |
[8] At paragraph 11 Justice Jerome is quoting from Mr. Justice Robertson in Moreno:
| "As to the degree of complicity required to justify a finding that the claimant was an accomplice to the commission of international crimes, see Robertson J.A. in Moreno at page 225: |
| "... It is settled law that acts or omissions amounting to passive acquiescence are not a sufficient basis for invoking the exclusion clause. Personal involvement in prosecutorial acts must be established..." |
[9] At paragraph 12:
| "It therefore follows that as a general rule, mere membership in an organization involved in international offences will not satisfy the mens rea requirement of the exclusion clause." |
[10] Paragraph 13:
| "Where the organization's purpose is not so limited, however, the Minister seeking to establish complicity must show that the member had knowledge of the crimes in question and shared the organization's purpose in committing them. In Sivakumar, the Court of Appeal ruled the requisite mental element could in certain circumstances be inferred from the member's position within the organization (at page 202): |
| "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. " |
[11] In the present case, having read the materials and having heard the submissions of counsel, I am of the opinion that the Board misconstrued the evidence and that its findings concerning the status of the Applicant as an organizer, instigator and accomplice are not supported by the evidence before it and, accordingly, I find that the Board's conclusions are patently unreasonable.
[12] The Board failed to show a sufficient link between the Applicant and the alleged prohibited acts of the organization in question, and in the result, the Applicant's Application for Judicial Review is granted and the matter will be remitted for determination before a differently constituted board.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
June 29th, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-5050-98 |
| STYLE OF CAUSE: SIDDIQI NADEEM MAHMOOD |
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
| DATE OF HEARING: WEDNESDAY, JUNE 21, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
| DATED: THURSDAY, JUNE 29, 2000 |
| APPEARANCES BY: Mr. John M. Guoba, Esq. |
| For the Applicant |
| Ms. Neeta Logsetty |
| For the Respondent |
| SOLICITORS OF RECORD: Mr. John M. Guoba, Esq. |
Barrister & Solicitor
2425 Eglinton Avenue E.
Suite 211
Toronto, Ontario
M1K 5G8
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000629
Docket: IMM-5050-98
BETWEEN:
| SIDDIQI NADEEM MAHMOOD |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |