Digests

Rai v. Canada (Minister of Citizenship and Immigration)

IMM-2249-00

2001 FCT 784, Nadon J.

12/7/01

10 pp.

Judicial review of Refugee Board's denial of Convention refugee claim--Applicant, citizen of Nepal, claiming well-founded fear of persecution based on political opinions, specifically membership in United People's Front (UPF)--Board holding excluded from definition of "Convention Refugee" pursuant to Art. 1F(a) of United Nations Convention Relating to the Status of Refugees--Found UPF committed to violent terrorist acts which could be defined as crimes against peace, war crimes, crimes against humanity--Also found applicant, as member of party, had intentionally, willingly, knowingly participated in that party, contributed to UPF's crimes--Issue extent to which accomplices in international crimes subject to exclusion--In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), MacGuigan J.A. stating personal and knowing participation in persecutorial acts required to establish complicity--In Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282 (C.A.) Décary J.A. holding "personal and knowing participation" may be direct or indirect; knowingly contributing to condemned activities in any way or making them possible whether from within or from outside organization making one accomplice--In Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.) Robertson J.A. holding exception to general rule mere membership in organization insufficient basis on which to invoke exclusion clause arising where organization's very existence premised on achieving political or social ends by any means deemed necessary--Question whether on authority of Ramirez, Bazargan, Moreno applicant "intentionally, willingly, and knowingly participated in the UPF and thus contributed to these violent terrorist acts"--Evidence supporting view UPF/Maoist faction organization whose very existence now premised on achieving political ends by any means deemed necessary--But same evidence not establishing UPF/Maoist faction organization principally directed to limited, brutal purpose--When applicant joined UPF in 1991, party was political contender with duly elected representatives--Only in 1996 that party decided to employ means other than democratic means to achieve political ends--Insufficient evidence to meet threshold of serious reasons for considering applicant guilty of crimes for which may be excluded under Art. 1F(a)--Application allowed--United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a).