Abbas v. Canada (Minister of Citizenship and Immigration)

Between:

Redha Abdul Amir ABBAS

and

Saliha REGGARD

and

Rashid Ridha ABDUL AMER

and

Amer Ridha A ABBAS

Applicants

- and -

The Minister of Citizenship and Immigration

Respondent

REASONS FOR ORDER

PINARD J.:

[1] This is an application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the IRB) dated November 8, 2002, that the applicant and his dependents are not Convention refugees within the meaning of subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.

[2] The principal applicant (the applicant), Redha Abdul Amir Abbas, is 55 years old. He is the husband of Saliha Reggard and the father of Rashid Ridha Abdul Amer, 13 years old and of Amar Ridha Abbas, 21 years old. They are all citizens of Iraq with the exception of Saliha Reggard, who is a citizen of Morocco. The applicant was designated as a representative of the 13-year old boy.

[3] The two children and their mother base their claim on that of the applicant who alleges that he has a well-founded fear of persecution at the hands of the authorities in Iraq and in Morocco.

[4] The IRB found that the applicant is not a Convention refugee because his testimony was not credible or trustworthy. Furthermore, the IRB found that the applicant is excluded under paragraph 1F(a) of the Convention because he knowingly participated in the commission of crimes against humanity by the Iraqi government.

[5] According to the applicant, the IRB's decision should be set aside because the IRB did not address the applicant's inclusion and because it excluded the applicant even though he had not participated in the crimes of the Iraqi government. The respondent, on the other hand, submits that the applicant has not raised any serious grounds that would warrant the intervention of this Court.

[6] On the matter of credibility, it is important to remember that this Court cannot substitute its decision for that of the IRB when, as in this case, the claimant fails to establish that the decision is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the panel (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). It has also been established that the IRB is a specialized tribunal which has the power to assess the credibility of testimony so long as the inferences drawn by the tribunal are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and the reasons are set out in clear and unmistakable terms (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)).

[7] In this case, the applicant submits that the IRB did not give any example or any details in support of its finding of a lack of credibility. Nevertheless, it appears from its decision that the IRB identified many inconsistencies and implausibilities in the applicant's story that led it to conclude that his reasonable fear of persecution was not credible. This assessment of the plausibility and coherence of the story falls within the IRB's powers as well as its obligations (Aguebor, supra). The panel was entirely justified in taking these implausibilities into consideration in analysing the applicant's credibility. A review of the decision in question and the transcript of the hearing reveals that the IRB considered the applicant's explanations, but found that they were inadequate. Moreover, the IRB clearly explains the basis of its decision in its reasons. The intervention of this Court on the issue of inclusion and on the dismissal of the claim because of a lack of credibility is therefore not warranted, especially because the panel's perception that the applicant was not credible could very well amount to a finding that there is no credible evidence to substantiate the refugee claim (see Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, at page 244 (C.A.)).

[8] On the matter of the applicant's exclusion under paragraph 1F(a) of the Convention, the applicant submits that the IRB found him guilty by association without any basis in fact. The applicant submits that the IRB did not ask itself whether the applicant personally and knowingly participated in persecutorial acts. 

[9] Mere membership in an organization involved in the perpetration of international crimes is not sufficient basis to invoke the exclusion of the applicant (Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 (C.A.)), unless the very existence of this organization is principally directed to a limited, brutal purpose (Saridag v. Canada (M.E.I.) (1994), 85 F.T.R. 307). Generally, the complicity between the applicant and the organization in question must be established. Blanchard J. gives an excellent overview of the caselaw on the subject of "complicity" in Sungu v. Canada (M.C.I.), [2003] 3 F.C. 192 (F.C.T.D..) :

[31] The question of complicity was also considered by Madam Justice Reed in Penate v. Canada (Minister of Citizenship and Immigration), [1994] 3 F.C. 79. Following an analysis of the decisions in Ramirez, supra, Moreno, supra, and Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), Reed J. concluded, at pages 84-85:

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.

[32] Likewise, in Sivakumar, supra, the Court of Appeal, following Ramirez, supra, explained that a person may be considered "an accomplice through association" and laid down the following principles:

- Complicity through association can mean that individuals may be rendered responsible for the acts of others because of their close association with the principal actors.

- Furthermore, 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. 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.

- In such circumstances, an important factor to consider is evidence that the individual protested against the crime or tried to stop its commission or attempted to withdraw from the organization.

- Association with an organization responsible for the perpetration of international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes.

[33] Moreover, in Bazargan v. Canada (M.E.I.) (1996), 205 N.R. 282, the Federal Court of Appeal held that "personal and knowing participation" may be direct or indirect and does not require formal membership in the organization that is ultimately engaged in the condemned activities. 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. Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation.

[10] Applying all of these principles to the evidence that was before the IRB, I am of the opinion that it did not make any error in deciding to exclude the applicant. First, the Iraqi regime under Saddam Hussein and the Baath party was founded on a forced arabization policy which brought about the genocide of some ethnic communities in Iraq. In its decision, the IRB describes, in detail, the limited, brutal purpose contemplated by the Iraqi regime. Moreover, the IRB concluded that the applicant was an accomplice to the Iraqi regime because he held positions of trust within the gouvernment, he had knowledge of some continuous and regular acts which were crimes against humanity and he never took measures to prevent these acts or to disengage himself from these activities. The IRB concluded, in effect, that during his 22 years of service with the Iraqi regime, the applicant demonstrated his active, constant and unquestioning support. Under the circumstances, considering the caselaw, I am of the opinion that the IRB did not err in applying the exclusion clause.

[11] Furthermore, as I do not see anything patently unreasonable in the IRB's decision, after reviewing the evidence and reading the hearing transcript, the application for judicial review is dismissed.

[12] In view of the factual context of these reasons, and also on the basis of the written representation filed by the respondent's counsel in opposition to the certification of the questions proposed by the applicants' counsel, no question is certified.

"Yvon Pinard" 

JUDGE 

OTTAWA, ONTARIO

January 9, 2004

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: IMM-6488-02

STYLE OF CAUSE: Redha Abdul Amir ABBAS, Saliha REGGARD, Rashid Ridha ABDUL AMER and Amer Ridha A ABBAS v. The Minister of Citizenship and Immigration

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: November 27, 2003

REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard

DATED: January 9, 2004

APPEARANCES:

Jean-Philippe Desmarais FOR THE APPLICANTS

Claudia Gagnon

Normand Lemyre FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jean-Philipppe Desmarais FOR THE APPLICANTS

Montréal, Quebec

Morris Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario<