Date: 19990917
Docket: IMM-1829-97
B E T W E E N :
MOHAMAD ZAHIR OFUQ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
(Rendered from the Bench at Toronto, Ontario,
Tuesday, May 26, 1998)
HUGESSEN J.
[1] The applicant seeks to attack the decision of the CRDD which found him to be excluded within the terms of paragraphs a) and c) of Article 1F of the Convention. The CRDD held a thorough hearing and wrote a decision of some length in which it reviewed in detail the leading authorities from this Court and in particular the three cases which I consider to be the most important pronouncements of the Court of Appeal on the matter, namely, Ramirez1, Moreno2 and Sivakumar3.
[2] The conclusion which was reached by the Board, which also neatly summarizes the essential facts, was as follows:
| The claimant was a founding member of the PDPA. He left to form his own party before the PDPA took power in Afghanistan. Then, in 1986, after the PDPA has been in power and has been committing widespread atrocities for a number of years, he rejoins it. He remains in a leadership role until 1990, when his criticisms cause his arrest. It is significant to note that his criticisms of the PDPA did not relate to the crimes against humanity being committed by the PDPA- directed military or KHAD. They related to political disagreements. |
| The claimant had knowledge of the crimes against humanity being committed by the PDPA regime through its agents the military and KHAD. He admitted to having the knowledge, and in any event must have known. He had a position of leadership, being a founding member of the party, and a permanent member of the Central Committee of the PDPA. |
| Can it be said that there is a shared common purpose? The answer must be in the affirmative. |
[3] Much of the argument advanced by the applicant on this judicial review, and in this counsel was followed onto the same ground by counsel for the respondent, bears on the correctness of the findings made by the Board. In my view, that misconceives the function of this Court when it undertakes judicial review of a decision of this sort. The Court is not here to assess the correctness of the Board's findings but rather their legality. Only when the Board strays so far from the standard of reasonableness as to commit an error which is patently unreasonable will the Court enter into an examination of its findings of fact.
[4] Here, with respect at least to the issue of Article 1F (a), the Board correctly instructed itself on the law, it asked itself the right questions and it gave answers to those questions for which there was manifestly support in the evidence. That is not to say that this Court would necessarily have given the same answers had it been sitting where the Board sat, but the Court can certainly not say that the Board committed any error of a nature which would justify its intervention.
[5] There was an interesting argument made with respect to the Board's finding that the applicant was also excluded in virtue of paragraph c) of Article 1F of the Convention. I prefer not to reach that question because, in the light of the finding I have just made that the Board's conclusion on paragraph 1F a) cannot be attacked, its conclusion on paragraph 1F c) becomes irrelevant.
[6] Accordingly, I propose to enter an order in dismissing the application for judicial review and before doing so I shall invite counsel for the applicant to indicate to me if he is of the view that there is a question of general importance raised in this file.
[7] (Later) Counsel for the applicant has suggested that there is a question of general importance that could be framed along the lines of whether there is a duty to assess the evidence beyond the questions of mere membership, remaining in the organization, and being in a position of authority. In my view, that is not a question of general importance. It has clearly been answered by the decisions of the Court of Appeal to which I have adverted and does not need any further answer. Accordingly, I will not certify that question.
"James K. Hugessen"
judge
__________________1 Ramirez v. M.E.I., [1992] 2 F.C. 306 (C.A.)