Category: Exclusion

The Court held that withholding of removal in the US does not justify a finding of exclusion under Article 1 E of the Convention: [46] The Board cited the Wangden case in support of its decision. Justice Mosley concluded that “Though a person granted withholding has a more limited range of rights than a person granted asylum under U.S. law, he or she still enjoys several important entitlements. The differences do not undermine my conclusion that withholding of removal is equivalent to recognition as a Convention refugee” (see Wangden v Canada (Minister of Citizenship and Immigration), 2008 FC 1230 at para 75). He also concluded that “holders of withholding of removal status in the United States are Convention refugees within the meaning of paragraph 101(1)(d) of the IRPA” (see Wangden at para 77). Based on the objectives of the IRPA and the wording of section 101(1)(d), Justice Mosley determined that parliament “did not want to assist persons who simply prefer asylum in one country over another. The Convention and the Immigration Act should be interpreted with the correct purpose in mind” (Mohamed v Canada (Minister of Citizenship and Immigration), 127 FTR 241, [1997] FCJ No 400 at para 9) which is, to protect individuals at risk (see Wangden at para 72). All of Justice Mosley’s conclusions were accepted and confirmed by the Federal Court of Appeal. [47] However, the ineligibility decision in the present case is based on section 98 of the IRPA rather than paragraph 101(1)(d) of the IRPA. Paragraph 101(1)(d) of the IRPA is not applicable and a withholding of removal based on section 98 of the IRPA is not a recognition of a Convention Refugee Status. Justice Harrington held in Valaei-Bakhshayesh v Canada (Minister of Citizenship and Immigration), 2011 FC 1130 at para 19, that “Article 1E thereof provides that the Convention does not apply to a person recognized in the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country”. This is not the case here.

The Court held that the Government of Rwanda could not be considered a limited brutal purpose organization as it engaged in other functions other than committing crimes against humanity.

The Court upheld an inadmissibility finding. It concluded there was no abuse of process due to delay. It found no error in the rejection of the duress defense holding it was open to the tribunal to reject the defense.

The Court found that the tribunal did not err in accepting the defense of duress. The defense requires proof of three elements: In order to rely on the defense of duress, a person must prove that (1) there exists an urgent situation of clear and imminent peril, (2) compliance with the law is demonstrably impossible, and (3) the harm inflicted is less than the harm sought to be avoided. (R. v. Perka, 1984 CanLII 23 (S.C.C.), [1984] 2 S.C.R. 232 at p. 248 ff.; Latimer, above at paragraphs 28 to 31). The burden of proof lies on the party relying on the defense of duress and it is then up to the Crown to disprove duress. (Ruzic above at paragraph 71).

In Nagamany v. Canada (Minister of Citizenship and Immigration) 2005 FC 1554 the Court found no error in the conclusion by the tribunal that the LTTE was a limited brutal purpose organization because their political activities were intertwined with their terrorism activities.

The Court upheld a decision of the IRB that refused to exclude the applicant despite his membership in a limited brutal purpose organization. The evidence rebutted the presumption.

in Mendez-Leyva v MCI 2001 FCT 523 the Court rejected a finding that the applicant was properly excluded due to his membership in the EPR a political organization that engaged in military activities to achieve its objectives. Although the evidence did support a finding of the commission of international crimes it was not sufficient to warrant a finding of limited brutal purpose: 44 Here, the only evidence referred to by the Board to support its finding that the EPR is "an organization that committed acts of terrorism, on a continuous basis, as part of its raison d'être", reads as follows: • The Partido Democratico Popular Revolucionario (PDPR) and its military wing, the Ejercito Popular Revolucionario (EPR - Popular Revolutionary Army) are active in Mexico. The self-proclaimed Popular Revolutionary Army (EPR) unveiled itself in the southwestern Guerrero State on 28 June 1996 during a ceremony marking the anniversary of a state police massacre of local peasants. The EPR has conducted small-scale attacks in several states, mostly against Mexican military and police outposts, public buildings, and power stations. The group has killed at least 17 persons, including several civilians. The Zedillo government characterized the EPR as a terrorist group. • Intelligence Resource Program, August 8, 1998, Applicant's Record, p. 61. 45 I do not find that this evidence can support the conclusion that the EPR is an organization with a limited and brutal purpose. The EPR is documented as engaging in violent acts (but not necessarily crimes against humanity), from time to time, to achieve political ends. Mere membership in an organization that commits abuses from time to time is not sufficient to meet the required degree of complicity in the commission of a crime against humanity, as stated by the Federal Court of Appeal in Ramirez,

in Antonio v Solicitor General 2005 FC 1700 the Court upheld a finding that the applicant was a member of a limited brutal purpose organization, the Angolan army. The Court held that the absence of any evidence of the army engaging in any activities other than those considered crimes against humanity was sufficient to justify the conclusion that the organization was one with a limited brutal purpose: 17 The Applicant suggests only one legitimate purpose for the Angolan Army during the time that he was a member; that of national defence. To support this argument, the Applicant points to two sentences in the voluminous documentary evidence that state that the role of the Angolan Army was responsible for protecting the country against external threats. However, there is ample documentary evidence that, during the period of civil war in which the Applicant served in the Army, the Angolan Army carried out activities directed at defeating the UNITA and terrorizing the citizens of Angola. Importantly, there is no documentary evidence that the Army engaged in any other activities whatsoever during the time in question.

in Plaisir v MCI 2007 FC 264 the Court set aside a finding that the applicant was ecluded due to her participation in the CIMO branch of the Haitian police. The Court noted that the tribunal failed to determine whether or not the organization was a limited brutal purpose organization. It set aside the decision holding that the tribunal also failed to engage in a proper analysis of the applicant’ role and determine whether it was sufficient to conclude that the applicant was complicit in crimes against humanity.

In Merceron v MCI 2007 FC 265 the Court set aside a finding that the applicant was excluded due to his participation in the Haitian police. The Court citing Lourdu held that the police was not a limited brutal purpose organization and as such there had to be direct evidence of the participation of the applicant in the specific crimes so as to justify a finding of complicity.