Ottawa, Ontario, April 4, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] In cogent and comprehensive reasons, the Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected the applicant's claim for refugee protection on the basis of section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Section 98 of the IRPA provides that a person referred to in section E or F of Article 1 of the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (the Refugee Convention), is not a Convention refugee or a person in need of protection. Mr. Han seeks judicial review of the board's decision. I have concluded that his application must be dismissed.
I. Facts
[2] Mr. Han, a Chinese citizen, joined the Chinese Communist Party (CCP) in 1980 and was hired by the Office of the Public Security Bureau (PSB) in 1982. By 1992, he had become Vice Department Head of the Shen Yang PSB. Approximately four years later, he became Vice Department Head of the Judicial Bureau of Shen Yang and, in April 1999, he was made Department Head of the Judicial Bureau. In the latter position, his duties included being in charge of two jails and four labour camps in Shen Yang.
[3] Mr. Han claims to have become disillusioned with the Chinese government as early as 1989. However, it was his trips abroad, including those to the United States in 1994 and 1997, that provided him with inspiration regarding reform of the Chinese legal system.
[4] Mr. Han was sympathetic to Falun Gong practitioners. In 2000, despite having expressed reservations (on the basis of lack of space), he was required to accommodate 190 Falun Gong practitioners in detention centres under his control. He placed these people in two reform centres and ordered his subordinates not to abuse them. He punished a staff member who disobeyed his instructions. After the escape of three detainees in February 2001, he was ordered to write a self-criticism, but he refused. In April of 2001, Mr. Han ordered the early release (fourteen days) of a famous old cadré who had exposed corruption and embezzlement in Shen Yang. In May 2001, he wrote a detailed report about the abuse sustained by two women at a reform centre not under his control. He mailed this report to the Head of the Judicial Bureau who became upset with Mr. Han for revealing the matter. During this time frame, the RPD found at least two significant incidents of human rights abuses in camps under Mr. Han's control.
[5] In August and September of 2001, without consulting anyone, Mr. Han arranged the release of 159 Falun Gong practitioners. After returning from a trip to the United States in September of the same year, he suspected that he was under surveillance and he left for Canada a few days later. Mr. Han arrived in Canada on September 16, 2001, and made his refugee claim on December 10, 2002.
II. Relevant Statutory Provisions
| Article 1 of the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150
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;
Immigration and Refugee Protection Act, S.C. 2001, c. 27
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. |
ARTICLE 1 DE LA CONVENTION DES NATIONS UNIES RELATIVE AU STATUT DES RÉFUGIÉS
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;
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
98. La personne visée aux sections E ou F de l'article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. |
III. The Decision
[6] The RPD found widespread and systemic human rights abuses in Chinabetween 1982 and 2001 (the years during which Mr. Han was a member of the Chinese administration). Although it focussed largely on evidence of abuse directed toward Falun Gong practitioners, it noted that this abuse was not exclusively directed toward that group. Documentary evidence from Amnesty International and Human Rights Watch supported findings that numerous prisoners and detainees have died as a result of torture and abuse by the Chinese authorities. The United States Department of State Country Report on Human Rights Practices for 2003 reported the use of torture by members of the police and security apparatus.
[7] The board accepted evidence of poor conditions and abuses at detainment centres under Mr. Han's control. It found Mr. Han's evidence regarding working conditions in these centres to be internally inconsistent and it drew a negative inference with respect to his credibility. The RPD preferred the documentary evidence regarding conditions in the detention centres over Mr. Han's evidence. Although the evidence came from reports from two Falun Gong sources, the board accepted the evidence on the basis that the information from these sources was generally consistent with information from Amnesty International and Human Rights Watch.
[8] Mr. Han held senior positions in both the PSB and the Shen Yang Judicial Bureau. The board did not accept his assertions that he was unaware of human rights abuses committed by people under his command. It found, on a balance of probabilities, that Mr. Han was aware of abuses committed both in his labour camps and throughout China.
[9] Additionally, the RPD found that Mr. Han had continued in his position within the regime and had accepted a number of promotions. The consequences of failing to obey orders, or of refusing a promotion, might have included being discredited or dismissed. Nonetheless, the board determined that these consequences were far less serious than the abuses committed by the regime. Regarding Mr. Han's oppositional activities, the RPD concluded that they were essentially unrelated activities and did not reflect a planned attempt to reform the Chinese penal system. It noted that Mr. Han left China and his position only when he felt personally at risk. Despite his ideological concerns, he had continued to support the regime until 2000.
[10] The board concluded that Mr. Han had been complicit in human rights abuses committed by the Chinese regime and in the detention centres under his control. He was, therefore, excluded under section 98 of the IRPA.
IV. Preliminary Issues
[11] Mr. Han filed a supplementary affidavit in support of his application for judicial review. Exhibited to that affidavit is a letter, dated February 1, 2006, from the Falun Dafa Association of Canada addressed to Mr. Han's counsel. The respondent objected to the admission of the exhibit because it was not before the RPD. The correspondence is dated February 1, 2006, and the board's decision is dated April 21, 2005. Unquestionably, the letter was not before the RPD. The jurisprudence is clear, absent exceptional circumstances, which are not present here, the role of the court on judicial review is to review the decision on the basis of the record that was before the decision maker. Mr. Justice MacKay, in Wood v. Canada(Attorney General) (2001), 199 F.T.R. 133 (T.D.), at paragraph 34, stated:
On judicial review, a Court can consider only evidence that was before the administrative decision-maker whose decision is being reviewed and not new evidence (see Brychka v. Canada (Attorney General), supra; Franz v. Canada (Minister of Employment and Immigration) (1994), 80 F.T.R. 79; Via Rail Canada Inc. v. Canada (Canadian Human Rights Commission) (re Mills) (August 19, 1997), Court file T-1399-96, [1997] F.C.J. No. 1089; Lemiecha v. Canada (Minister of Employment & Immigration) (1993), 72 F.T.R. 49, 24 Imm. L.R. (2d) 95; Ismaili v. Canada (Minister of Citizenship and Immigration), (1995) 100 F.T.R. 139, 29 Imm. L.R. (2d) 1).
Accordingly, the correspondence will not be considered on this application.
[12] The second issue is Mr. Han's reliance, in his written submissions, on the reasons of Mr. Justice Blanchard in Thamotharem v. Canada (Minister of Citizenship and Immigration) 2006 FC 16 in support of his argument that the application of Guideline 7 (reverse order questioning), "compounded with the special nature of the hearing, negatively impacted on the claim". He contends that the RPD, apparently influenced by the manner in which the order of questioning had been set out in the analysis of exclusion, used the same system in the examination of "inclusion".
[13] This argument was not developed at the hearing and is fraught with difficulty in any event. Mr. Han does not specify how the order of questioning impacted his case. His counsel acknowledged that the order of questioning provided by paragraph 21 of Guideline 7 is similar to the practice that existed in "exclusion hearings" before the implementation of the Guideline. More importantly, the board's decision is confined to the exclusion issue. Since Mr. Han's arguments relate only to the order of questioning regarding "inclusion", they are irrelevant. Because this argument was not seriously advanced, I do not intend to say anything further regarding it.
V. The Standard of Review
[14] In relation to a finding of exclusion, findings of fact are reviewed on a standard of patent unreasonableness and findings that apply the facts to the law are reviewed on a standard of reasonableness: Harb v. Canada(Minister of Citizenship and Immigration) (2003), 302 N.R. 178 (F.C.A.)
VI. Issues
[15] Mr. Han's written submissions raise three primary issues. I will deal with each of them in turn. At the hearing, an additional submission that Mr. Han's counsel described as "novel" was put forth. I will comment on that position after addressing the specific issues of which the respondent had notice. I am satisfied that all alleged errors are subsumed in the questions identified and discussed below.
A. Did the RPD err in preferring documentary evidence to the applicant's oral testimony without providing valid reasons?
[16] The RPD concluded that there exist serious reasons for believing that Mr. Han is a person described in Article 1, section F(a) of the Refugee Convention and excluded him under section 98 of the IRPA. It did not accept Mr. Han's evidence regarding conditions in prisons and labour camps under his control. It concluded, on a balance of probabilities, that he was aware of the abuses that were occurring. The board found that Mr. Han's testimony lacked credibility due to internal inconsistencies. This finding was specifically made in relation to testimony about the conditions in labour camps under his control.
[17] Mr. Han initially testified that detainees in the camps spent the majority of their days engaged in activities such as watching television, reading the news and stretching. He suggested that any labour performed was largely at the detainees' volition and was not heavy labour. At a later hearing date, when confronted with a report about detainees in one of his camps working 16-hour days, Mr. Han testified that he had directed that detainees not be overworked, that the camp directors organized their own work, and that it was possible that the director had the detainees work long hours in order to complete an order without informing him. Mr. Han also acknowledged, as possible, one of the incidents of abuse. While he gave orders that Falun Gong prisoners not be abused, he acknowledged that there were occasional incidents of violence against other prisoners in his camps.
[18] The RPD drew a negative credibility finding on the basis of the inconsistencies in Mr. Han's evidence regarding the conditions in the camps. It preferred the documentary evidence in this respect over Mr. Han's evidence. As noted earlier, the documentary evidence came from reports from two Falun Gong sources which the board accepted on the basis that the information from those sources was generally consistent with information from Amnesty International and Human Rights Watch.
[19] Mr. Han is correct that the RPD must be specific in its reasons when making a negative credibility finding and that it must state in clear and unmistakable terms why it preferred the documentary evidence over his testimony.
[20] In my view, the board clearly stated why it doubted Mr. Han's credibility and it also explained why it was willing to accept evidence from potentially partisan sources. Its negative credibility determination is not patently unreasonable.
[21] However, the findings that support the negative credibility determination relate specifically to the working conditions in the camps and not to the atrocities committed within them. The board's conclusion regarding the atrocities is, on a balance of probabilities, that Mr. Han was aware that these atrocities were occurring. This finding is not fully explained and there is no documentary evidence to support it. The only evidence linking Mr. Han to an atrocity in one of his camps relates to an incident where he punished a camp official who had tortured a young detainee. In the absence of a more extensive explanation for rejecting Mr. Han's denial of knowledge, it cannot be said that the RPD provided an adequate basis for its conclusion that Mr. Han was aware of the atrocities committed within the detention centres under his control.
[22] That said, my determination in this regard pertains only to the conditions and abuses in Mr. Han's camps and his knowledge of them. It does not extend to Mr. Han's admitted knowledge of widespread human rights abuses elsewhere in China.
B. Did the RPD err in finding that Mr. Han was an accomplice to crimes against humanity allegedly committed by the Chinese government?
[23] Mr. Han strenuously argues that in order to find that he had reached the degree of complicity necessary to be viewed as an accomplice in the commission of crimes against humanity, the RPD must find that he had knowledge of the crimes in question and that he shared the regime's purpose in committing them. He claims that the board based its finding of complicity on his status within the Chinese government and the government's record of human rights abuses without considering whether he had any personal involvement in the alleged offences. My analysis of this issue will be combined with my analysis of the next question.
C. Did the RPD err in failing to specify the crimes against humanity to which Mr. Han was found to be complicit?
[24] Mr. Han contends that the board gave a detailed account of the Chinese government's abuse of human rights without linking him to specific criminal activities. According to Mr. Han, poor working conditions in camps, with respect to which the RPD held his testimony was inconsistent, are not crimes against humanity.
VII. Analysis
[25] The foundation upon which the jurisprudence relating to "complicity" rests is the trilogy of cases from the Federal Court of Appeal: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.) (Ramirez); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.) (Moreno); and Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.) (Sivakumar).
[26] In Ramirez, the court determined that committing an international crime requires personal and knowing participation (para. 15) and that mere presence at the scene of an offence is not enough to meet this requirement (para. 17). The court also said that someone who is an associate of the principal offenders can never be said to be a mere onlooker (para. 17). The court held that "complicity rests in such cases...on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it" (para. 18). In that case, the applicant had deserted the El Salvadorian military due largely to concern over the activities of that military. However, he had been in active service for twenty months, was fully aware of abuses committed by the military and had been present at many incidents of persecution. He was determined to be part of the operation "even if he personally was in no sense a 'cheering section'." (para. 38). His subsequent change of heart and desertion from the military did not mitigate his earlier involvement.
[27] In Moreno, the court held that passive acquiescence, through either acts or omissions, is not sufficient to invoke the exclusion clause (para. 50). The court also stated that it was influenced by the idea that the closer one is to the decision-making process, and the less one does to prevent the commission of inhumane acts, the more likely it is that one will be responsible (para. 53). In that case, a man who had been forcibly conscripted into the military and had been posted outside a room in which someone was tortured, but to which he did not have a key, was not found to come within the exclusion clause.
[28] In Sivakumar, the court noted that a commander may be responsible for international crimes committed by those under his command, but only if he has either knowledge of them, or reason to know about them (para. 8). Further, the court stated that remaining in a leadership position in an organization that one knows is responsible for crimes against humanity may constitute complicity. The court held that it is crucial that the board set out in its reasons those crimes against humanity which there is serious reason to believe that the claimant has committed (para. 33). In Sivakumar, the reasons were determined to be deficient for failing to set out factual findings regarding the acts committed and the applicant's knowledge of the acts and shared purpose with the organization. However, the court found that the applicant had testified about his knowledge of abuses carried out by his organization, though he had protested against them, and that there was sufficient objective material documenting the abuses such that no tribunal could fail to accept that the allegations against the organization were true.
[29] In Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.), Madam Justice Reed concluded that a person who is a member of the persecuting group and who has knowledge of the persecution, and who neither takes steps to prevent it (if he has the power to do so), nor leaves the group at the earliest safe opportunity, but actively supports the group, will be considered to be an accomplice.
[30] The respondent's position is that there were numerous factors that contributed to the board's finding of complicity, notably: the abuses committed by the regime during Mr. Han's employment; Mr. Han's continued display of support for the regime; his knowledge of widespread human rights abuses; his failure to oppose government policies until 2000; evidence that detainees in his camps were tortured and killed; the lack of credibility of some of his evidence; and his failure to disengage himself from the regime.
[31] The burden of establishing that human rights abuses have been committed is on the Minister and the standard of proof for a finding of exclusion is that there are serious reasons for considering that an applicant has committed human rights abuses. There is no substantive distinction between the terms "serious reasons for considering" and "reasonable grounds to believe: Ramirez; Moreno. The standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities: Mugesera, [2005] 2 S.C.R. 100. The RPD found that Mr. Han was complicit in such abuses on two grounds: first, based on human rights abuses committed by people acting under his authority, and second, based on his association with the Chinese government.
[32] Regarding the board's finding that human rights abuses had occurred in labour camps under Mr. Han's control, its finding was not patently unreasonable. Mr. Han did not dispute that the two serious incidents of abuse cited by the board took place. In relation to one of these incidents, he acknowledged that it was possible that it had occurred. There must be serious reasons for the RPD to arrive at its factual findings. As previously noted, the board considered that some of its information came from partisan sources, but its decision to accept this evidence on the basis that reports from these sources generally accord with reports from independent non-governmental organizations (NGOs), was not unreasonable. On this basis, it was open to the RPD to conclude that there were serious reasons for considering that the abuses of human rights had occurred.
[33] However, I have determined that the board did not provide an explanation for concluding that Mr. Han was complicit in these abuses. As I stated earlier, the RPD did not provide a full assessment of Mr. Han's assertion that he had no knowledge of these abuses. For the RPD to conclude that an applicant has been complicit in human rights abuses, it must find personal and knowing participation. In Sivakumar, the court acknowledged that a position of authority alone is not sufficient to meet this standard. Therefore, Mr. Han's oversight of the camps is not, in my view, a sufficient basis for a finding of complicity. Absent adequate reasons from the board to support its finding that Mr. Han had knowledge of the abuses in the camps, its finding of complicity in this respect cannot be sustained.
[34] The RPD did not make factual findings about other specific incidents of human rights abuses in China. However, it referred to the contents of reports from NGOs, such as Amnesty International, Human Rights Watch and U.S. DOS report, which reported wide-spread and systematic abuses within China. In Sivakumar, the court accepted such evidence as a basis for finding that no board could hold that the accusations against the organization were untrue. Moreover, Mr. Han acknowledged that human rights abuses are widespread in China.
[35] While Mr. Han apparently took steps to protect members of the Falun Gong between 2000 and 2001, he had already served many years as a senior member of an administration that he knew to engage in human rights abuses and he had publicly supported the ideology of this administration. In Ramirez, the court found that the applicant's eventual change of heart and desertion of the El Salvadorian army did not mitigate his previous association with that organization. In Sivakumar, the applicant's repeated protests against the treatment of civilians by his organization did not mitigate his ongoing association with that organization. Mr. Han's eventual decision to oppose the administration may be admirable, but it does not alter the fact that he spent years supporting this regime.
[36] Further, the RPD found that the activities that Mr. Han did undertake to protect Falun Gong members did not reflect a planned attempt to promote penal reform. Mr. Han acknowledged that his punishment for refusing to obey orders or refusing promotions would have been to be personally discredited or dismissed, a penalty that the board concluded was far milder than the abuses inflicted on people by the regime in which he participated.
[37] I find no basis upon which to set aside the board's decision in this respect. The reasons provide an analysis of the evidence that led the RPD to its conclusion. Its analysis withstands the scrutiny of a somewhat probing examination and, consequently, is not unreasonable. Mr. Han is properly subject to exclusion on the basis of his participation in, and public support of, a regime that he knew to be engaging in widespread human rights abuses.
[38] Before concluding on this issue, I reiterate the concern that I expressed to Mr. Han's counsel at the hearing, specifically, that his arguments appear somewhat anomalous in the face of paragraph 4 of his supporting affidavit, sworn May 31, 2005, which states, "I admit the facts as stated by the tribunal in its written reasons".
VIII. The Novel Argument
[39] Mr. Han's counsel took exception to the fact that the board did not make an alternative inclusion finding. Its failure in this respect is said to leave Mr. Han without any protection from return to China where he will surely be at risk. The goal of the exclusion clause, according to Mr. Han's counsel, is "to bring about a climate of change in the source country in order that people need not flee the source country in the first place". To accomplish the goal, the converted "insiders" must be protected.
[40] No authority is cited in support of the proposition advanced. In Xie v. Canada (Minister of Citizenship and Immigration), [2005] F.C.R. 305; (2004), 243 D.L.R. (4th) 385 (C.A.) (Xie), the Federal Court of Appeal held that the RPD must decide the issue regarding a claimant's exclusion, from refugee protection, before dealing with the merits of the claim. Once the board finds that a claimant is excluded from refugee protection, there is nothing more that it can or should do.
[41] Mr. Han's concerns are addressed in Xie, specifically at paragraphs 26, 28, 29 and 30. His counsel is referred to that authority because I do not intend to recite the paragraphs here.
[42] The Court of Appeal summarizes its conclusions regarding the structure of the IRPA, in relation to the determination of claims for protection, at paragraph 33 of its reasons. It instructs that there are two streams, claims for refugee protection and claims for protection in the context of pre-removal risk assessments (PRRAs). Those who are subject to the exclusion in section 98 are excluded from the refugee protection stream but are eligible to apply for protection at the PRRA stage. The basis upon which the claim for protection may be advanced is the same, but the Minister can have regard to whether the granting of protection would affect the safety of the public or the security of Canada.
[43] The Xie decision, in my view, provides a complete answer to the "novel" argument, as I understand it.
[44] Counsel did not suggest a question for certification and none arises.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2720-05
STYLE OF CAUSE: GUANG SHENG HAN v.
MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 29, 2006
AND JUDGMENT: Layden-Stevenson J.
APPEARANCES:
| Joel Etienne
|
|
| Tamrat Gebeyehu |
SOLICITORS OF RECORD:
| Joel Etienne Barrister and Solicitor Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |