Judgments

[1994] 3 .F.C. 99

IMM-3365-93

Murugadas Thamotharampillai (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Thamotharampillai v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Gibson J.—Toronto, April 13; Ottawa, April 22, 1994.

Citizenship and Immigration — Status in Canada — Convention refugees — Application to review CRDD decision applicant excluded from application of United Nations Convention Relating to the Status of Refugees as person guilty of acts contrary to purposes, principles of United Nations — Applicant, Tamil from Sri Lanka, convicted in Canada of conspiracy to traffic in heroin — CRDD holding fight against narcotics trafficking one of purposes of UN — Application dismissed — CRDD’s construction of exclusion clause in Convention most agreeable to justice and reason — Crime of which applicant convicted having serious international implications — Constituting element of international criminal activity against which UN undertaking significant initiatives within its purpose, principles — Having potentially fearful social, cultural, humanitarian, economic repercussions.

International law — Interpretation of United Nations Convention Relating to the Status of Refugees, Art. 1(F)(c) excluding from application of Convention persons reasonable to consider guilty of acts contrary to purposes, principles of United Nations — No error in CRDD decision applicant, convicted of conspiracy to traffic in narcotics, within exclusion clause — Applicant’s crime part of international scheme, having repercussions beyond borders of Canada — Convention construed in manner most agreeable to justice, reason in circumstances.

This was an application for judicial review of a decision of the Convention and Refugee Determination Division (CRDD) that the applicant was not a Convention refugee because he fell within the exclusion clause found in the United Nations Convention Relating to the Status of Refugees, section F(c) of Article 1. That clause provides that the Convention shall not apply to any person with respect to whom there are serious reasons for considering that he has been guilty of acts contrary to the principles and purposes of the United Nations. The applicant pleaded guilty to conspiring to traffic in a narcotic (heroin). A report was prepared against him under the Immigration Act, section 27. At his deportation hearing he claimed Convention refugee status. Although the CRDD found that he had a well-founded fear of persecution if he were required to return to Sri Lanka by reason of his nationality, political opinion and membership in a particular social group, and that he did not have an internal flight alternative, it found that the applicant was not a Convention refugee because section F(c) of Article 1 of the Convention excluded him from the operation of the Convention. The CRDD held that the fight against illegal traffic of narcotics was one of the purposes of the United Nations.

The issue was whether the CRDD erred in law in preferring a broad interpretation of section F(c) of Article 1 of the Convention to the more restrictive interpretation suggested in the UNHCR Handbook

Held, the application should be dismissed.

The crime committed by the applicant bore no relationship to the “aftermath of Second World War atrocities”, said to underlie the intention of the signatories of the Convention to preserve a wide power of exclusion from refugee status of perpetrators of international crimes. Nonetheless, it was a crime with international implications. Heroin is not a locally produced narcotic. The crime in question was one against which the U.N. has initiated, coordinated and undertaken a range of international initiatives equivalent to or greater than the fight against hijacking and hostage-taking.

The CRDD did not err in concluding that the applicant was excluded from Convention refugee status. It adopted the construction of section F(c) of Article 1 of the Convention most agreeable to justice and reason in all of the circumstances. The applicant’s crime had, within Canada, potentially fearful social, cultural, humanitarian and economic repercussions. As part of an international scheme, those repercussions extended beyond the borders of Canada.

There was no need to certify a question relating to whether the CRDD should adopt a restrictive or liberal interpretation of Convention, section F(c) of Article 1 as the Ramirez and Moreno decisions answered the question on the facts of this case. Likewise, the facts of this case were not appropriate for certification of a question regarding the circumstances in which a crime committed within Canada should be considered of such a nature as to warrant the application of section F(c) of Article 1 of the Convention.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, ss. 2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 27 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4), Sch. (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 34).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1, s. F.

CASES JUDICIALLY CONSIDERED

APPLIED:

Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; (1993), 159 N.R. 210 (C.A.); Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306; (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.); Pushpanathan v. Canada (Minister of Employment and Immigration), IMM-240-93, McKeown J., order dated 3/9/93, F.C.T.D., not yet reported.

REFERRED TO:

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 153 N.R. 321.

AUTHORS CITED

Grahl-Madsen, Atle. The Status of Refugees in International Law, vol. 1. Leyden: A. W. Sijthoff, 1966.

Hathaway, James C. The Law of Refugee Status. Toronto: Butterworths, 1991.

United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Geneva, January 1988.

APPLICATION for judicial review of a CRDD decision that the applicant, convicted in Canada of conspiring to traffic in narcotics, was excluded from the application of the United Nations Convention Relating to the Status of Refugees by section F(c) of Article 1 thereof, relating to persons guilty of acts contrary to the purposes and principles of the United Nations. Application dismissed.

COUNSEL:

Mohamed M. Kamaluddin for applicant.

Mark M. Persaud for respondent.

SOLICITORS:

Mohamed M. Kamaluddin, Scarborough, Ontario, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Gibson J.: This is an application for judicial review of a decision of the Convention Refugee Determination Division (the “CRDD”) of the Immigration and Refugee Board dated the June 9, 1993, wherein the CRDD determined the applicant not to be a Convention refugee within the meaning of the Immigration Act,[1] by reason of the fact that the applicant is a person to whom the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6] (the “Convention”) does not apply pursuant to section F of Article 1 of the Convention. Section F of Article 1 of the Convention is set out in the Schedule to the Immigration Act [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 34] and reads as follows:

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;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

The applicant is a young Tamil male from Jaffna in the northern part of Sri Lanka. He bases his claim to Convention refugee status on an alleged well-founded fear of persecution if he is required to return to Sri Lanka on the basis of his race, religion, nationality, political opinion and membership in a particular social group.

The facts may be briefly stated as follows.

The applicant was a victim of abuse at the hands of both the police and the military while in his home region, the northern part of Sri Lanka. In an effort to avoid abuse and to start a new life for himself, he moved to Colombo. He was there abused by the police. While he fears persecution by the police and the military if he is required to return to Sri Lanka, he further alleges a well-founded fear of persecution at the hands of the Tamil Tigers.

The applicant fled Sri Lanka and came to Canada in 1984. He was deemed to be a Convention refugee by the relevant Minister of the Government of Canada in February of 1985. He obtained landed status in Canada on November 26, 1986. On August 30, 1990, he was convicted of conspiracy to traffic in a narcotic and sentenced to three years’ imprisonment. As a result, a report was prepared against him under section 27 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4] of the Immigration Act. At his deportation hearing, a conditional deportation order was issued. He once again claimed Convention refugee status.

It is against this background that the matter came before the CRDD.

The CRDD had before it reasons of the sentencing Judge in respect of the conviction of the applicant for conspiracy to traffic in a narcotic within Canada. Although those reasons are only obliquely referred to by the CRDD in its reasons for decision, I consider them to be important in this judicial review of the CRDD’s decision. The reasons of the sentencing Judge read in part as follows:

Three of the four accused[2] present at this proceeding have pleaded guilty to a count of conspiracy to traffic in heroin. The fourth accused has pleaded guilty to possession of the proceeds of crime. The proceeds of crime in his case consisted of the money involved in the sale of some heroin to an undercover police officer.

With varying degrees of involvement, each accused on the heroin conspiracy count has pleaded guilty to a crime which involved, from my overall perspective, a criminal scheme to traffic in a very substantial quantity of that deadly poisonous substance. The ultimate object of the conspiracy, while its details and essentials may not at the time have been fully in possession of three of the accused who have pleaded guilty, involved the attempted release of serious, dangerous criminals from Kingston penitentiary. The heroin was to be the method of payment made for the release by a breakout from the penitentiary of the criminals who were inside serving lengthy prison terms.

The list of sophisticated weaponry, including helicopters, to be employed in the prison break is, indeed, long and very serious.

…

I am well aware that all of the accused before me for sentence now may not have been involved in the ultimate object of the conspiracy. Without question, however, each has admitted his part in the conspiracy to traffic in heroin, and in the case of the other accused, in his part in the receiving and possession of the proceeds of the purported sale of that heroin to the undercover officer.

It was indeed fortunate for the public, generally speaking, that an undercover police officer, at no little risk to himself, was able to represent himself as a conspirator in order to break what might have been one of the most serious crimes to be committed in this area, at least for quite a period of time, short of murder. That officer and those who supported him deserve a good deal of credit and gratitude from the public at large, which I feel that I am in the best position to convey.

The admitted facts disclosed Mr. Murugesu played a very prominent executive part in the execution of the heroin aspect of the conspiracy. The other two accused played a much smaller role. They were Mr. Ratnam and Mr. Thamotharampillai. They were retained, for money, to act as “mules” or “runners” for others. Therefore, the sentences to be imposed will reflect the variance of participation and involvement of the three accused…. Everybody who has pleaded guilty, irresistibly, well knew that the subject in which they dealt was heroin.[3]

The CRDD found the applicant to have a well-founded fear of persecution, if he were required to return to Sri Lanka, by reason of his nationality, political opinion and membership in a particular social group. It found the applicant not to have an internal flight alternative. Despite these findings, it found the applicant not to be a Convention refugee because he is a person to whom the Convention does not apply because, in the terms of section F(c) of Article 1 the Convention, he is a person with respect to whom there are serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations.

The CRDD’s analysis leading it to the conclusion that it must exclude the applicant from Convention refugee status is somewhat lengthy but is, I conclude important to reproduce in full. It reads as follows:

The Minister’s Representative submitted several documents demonstrating that the United Nations has taken a number of initiatives to gain cooperation among member states to counter the drug traffic. Among others, we note in particular the Single Convention on Narcotic Drugs, 1961 at Page 38, Article 35, “Action Against the Illicit Traffic”.

Having due regard to their constitutional, legal and administrative systems the parties shall:

a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such coordination;

b) Assist each other in the campaign against the illicit traffic in narcotic drugs;

c) Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic.

At Pages 39 and 40 we note that Article 36 of that Convention provides for penal provisions for persons involved in the illicit trafficking of narcotics.

The issue for the panel is whether these initiatives can be construed as part of the United Nations’ purposes and principles. The UNHCR Handbook provides the following guidance in interpreting the exclusion clause in question.

162. It will be seen that this very generally-worded exclusion clause overlaps with the exclusion clause in Article 1F(a); for it is evident that a crime against peace, a war crime or a crime against humanity is also an act contrary to the purposes and principles of the United Nations. While Article 1F(c) does not introduce any specific new element, it is intended to cover in a general way such acts against the purposes and principles of the Untied Nations that might not be fully covered by the two preceding exclusion clauses. Taken in conjunction with the latter, it has to be assumed, although this is not specifically stated, that the acts covered by the present clause must also be of criminal nature.

163. The purposes and principles of the United Nations are set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations. They enumerate fundamental principles that should govern the conduct of their members in relation to each other and in relation to the international community as a whole. From this it could be inferred that an individual, in order to have committed an act contrary to these principles, must have been in a position of power in a member State and instrumental to his State’s infringing these principles. However, there are hardly any precedents on record for the application of this clause, which, due to its very general character should be applied with caution.

While the UNHCR Handbook is not binding, it is authoritative, and we give it careful consideration.

Paragraph 163 of the UNHCR Handbook directs our attention to the Preamble and Articles and (sic) 1 and 2 of the Charter of the United Nations to find the purposes and principles of the United Nations. There is no mention therein of the crime the claimant has been convicted of, “conspiracy to traffic in narcotics”. Nevertheless, Chapter 1, Article 1(3) of the Charter of the United Nation reads:

To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, there is ample evidence that the United Nations has taken many initiatives in respect to the drug problem. In its publication, “The United Nations and Drug Abuse Control”, the United Nations lists no fewer than 19 organizations under its umbrella, or associated with it, that have taken action in respect of or solely devoted to the illicit drug issue. The Commission on Narcotic Drugs is one of the economic and social council of the United Nations six functioning commissions. The International Narcotic Control Board was established by the 1961 single Convention on narcotic drugs to limit the cultivation, production, manufacturing and utilization of drugs. There are three units in the United Nations Secretariat responsible for drug abuse control activities. There is a United Nations fund for drug abuse control for which 90 government contributes [sic].

The list goes on.

In light of this evidence, we determine that the fight against illegal traffic of narcotics is certainly one of the purposes of the United Nations, falling under Article 1(3) of its Charter. We do not think it necessary for the charter to have to identify specifically each and every one of the purposes of the United Nations that could trigger the exclusion clause.

In his recent text, Professor Hathaway offers five possible interpretations of this particular exclusion clause. One of these, the fifth, presents an interpretation that conforms to the Minister’s representation contention.

Finally, it is argued that the clause disfranchises those who fail to respect any major initiative of the United Nations, including not only respect for human rights, but also such clause causes as the fight against hijacking and hostage-taking.

In the absence of case law on which to rely, it is open to us to accept this interpretation of the exclusion clause. To do so, however, would run counter to the suggestion in the UNHCR Handbook quoted above that it would be inferred that an individual, in order to have committed an act contrary to these principles, must have been in a position of power in a member state and instrumental to his state’s infringing these principles.

Professor Hathaway, in his concluding paragraph, seems to adopt the UNHCR Handbook position in this regard. While carrying considerable authority, these interpretations are not binding. We note that Article 1F(c) of the Convention does not stipulate that the acts that trigger this exclusion clause must have been committed outside the country of refuge as does Article 1 F(b). If that had been the drafters’ intention, we would have expected them to have said so. Nor is there any indication in the wording of the clause that the offender had to hold a position of power in his country’s government.

It seems to us that Article 1 F(a) concerning a crime against peace, a war crime, a crime against humanity is more clearly directed to the abuse of authority than is 1 F(c). We note as well the extremely tentative wording in the UNHCR Handbook, “it could be inferred”. In our view, it is entirely reasonable to determine that someone who has committed a serious criminal act that is clearly against major initiatives of the United Nations is not worthy of the protection of the country of refuge in which he committed such an act.

Do we have serious reasons for considering that this claimant has committed such an act? Yes. The claimant testified that he had pleaded guilty to charges of conspiracy to traffic narcotics and had been sentenced to three years in prison.[4]

While I have some difficulty with the CRDD’s determination set out in the foregoing quotation that “the fight against illegal traffic of narcotics is certainly one of the purposes of the United Nations, falling under Article 1(3) of its Charter,” I have no difficulty concluding that it is an activity within the ambit of those purposes. The result is, I conclude, the same.

The critical issue that was argued before me was whether or not the CRDD erred in law in preferring a broad or liberal interpretation of section F(c) of Article 1 of the Convention to the more restrictive interpretation suggested in paragraph 163 of the UNHCR Handbook quoted above from the CRDD’s reasons and noted in those reasons to be the position apparently adopted by Professor Hathaway in his text The Law of Refugee Status.[5]

In Ramirez v. Canada (Minister of Employment and Immigration),[6] MacGuigan J.A., speaking for the Federal Court of Appeal in referring to the interpretation of other paragraphs of the UNHCR Handbook stated:

Therefore, although the appellant relied on several international authorities which emphasize that the interpretation of the exclusion clause must be restrictive, it would nevertheless appear that, in the aftermath of Second World War atrocities, the signatory states to this 1951 Convention intended to preserve for themselves a wide power of exclusion from refugee status where perpetrators of international crimes are concerned.

While the crime committed by the applicant and here in question, certainly bears no relationship to the “aftermath of Second World War atrocities,” it certainly was a crime with international implications. Heroin is not a locally produced narcotic. The crime in question was a crime against which the United Nations has initiated, coordinated and undertaken a range of international initiatives, and, in that regard, is certainly on a scale equivalent to or greater than, the “fight against hijacking and hostage-taking” referred to in the extract from Professor Hathaway’s text cited by the CRDD in its reasons.[7]

In Moreno v. Canada (Minister of Employment and Immigration),[8] Robertson J.A., speaking for the Federal Court of Appeal stated [at page 307]:

The thrust of the appellant’s argument is that the Board, and this Court, should construe narrowly the exclusion clause in view of the possible persecution awaiting persons who might otherwise be declared Convention refugees. I recognize that this view is echoed by all of the leading commentators and reinforced in the UNHCR Handbook …. [Numerous authorities cited here are omitted.]

As persuasive as the commentaries may be, I am bound to approach the application of the exclusion clause, first, by reference to the existing jurisprudence of this Court and, second, by reference to the clear intent of the signatories to the Convention. Where, however, there is an unresolved ambiguity or issue, the construction most agreeable to justice and reason must prevail.

Authorities cited by Mr. Justice Robertson and by counsel before me demonstrate that the “intent of the signatories to the Convention” in relation to section F(c) of Article 1 of the Convention was not clear.[9]

I turn then to the existing jurisprudence of this Court in relation to section F(c) of Article 1. It is not extensive. In Pushpanathan v. Canada (Minister of Employment and Immigration),[10] McKeown J. stated:

On the first point with respect to section F(c) of Article 1 in my view the Refugee Division reasonably concluded that the applicant is not a Convention refugee because he is specifically excluded from the definition by virtue of the fact that the Convention does not apply to him because he has been guilty of acts contrary to the purposes and principles of the United Nations. There are serious reasons for considering the foregoing.

There was evidence before the Refugee Division upon which it could reasonably conclude that the United Nations has taken initiatives to counter the traffic in illicit drugs and that such initiatives could be construed as part of the United Nations’ purposes and principles.

There is no reason to limit the application of section F(c) of Article 1 of the Convention to persons in power. The wording of the article does not permit such a discrimination. There may be many cases where section F(c) of Article 1 should not be applied because of the nature of the violation of the United Nations’ purposes and principles but this is not one of them.

Apparently the applicant in that case was somehow involved in the traffic in illicit drugs. Unfortunately, Mr. Justice McKeown’s reasons give no indication of the nature of the applicant’s involvement.

No other cases were cited before me that are directly relevant to the circumstances here under consideration.

Returning then to the decision in Moreno, I repeat the last sentence quoted from the reasons of Mr. Justice Robertson:

Where, however, there is an unresolved ambiguity or issue, the construction most agreeable to justice and reason must prevail.

Even without the precedent in Pushpanathan, I conclude that the CRDD made no error of law or other reviewable error in concluding as it did that the applicant was excluded from Convention refugee status by reason of section F(c) of Article 1 of the Convention. Assuming for the moment an unresolved ambiguity or issue that was before the CRDD, and I believe there to have been no unresolved ambiguity or issue arising out of the facts of this case, I conclude that the construction of section F(c) of Article 1 of the Convention adopted by the CRDD is the construction most agreeable to justice and reason in all of the circumstances of this case. The crime of which the applicant was convicted, on a plea of guilty, was one involving significant international implications. It constituted an element of international criminal activity against which the United Nations has initiated, coordinated and undertaken significant initiatives within its purposes and principles. It was a crime that, within Canada, potentially had fearful social, cultural and humanitarian repercussions, to say nothing of its economic repercussions. As part of an international scheme, those repercussions extended well beyond the borders of Canada.

For the foregoing reasons, I have dismissed this application.

Counsel for the applicant argued that I should certify a question in this matter relating to whether the CRDD should adopt a restrictive or broad or liberal interpretation of section F(c) of Article 1 of the Convention in matters that come before it and that raise the application of that paragraph. Counsel for the respondent argued that the Ramirez and Moreno decisions cited above effectively answer that question. Counsel for the respondent suggested that I might wish to consider certifying a question regarding the scope and nature of crimes within Canada that would appropriately invoke the application of section F(c) of Article 1 of the Convention. With regard to the question proposed by counsel for the applicant, I am in agreement with the position of counsel for the respondent on the facts of this case. With regard to the question proposed by counsel for the respondent, once again, I am not satisfied that the facts of this case are appropriate for a determination of the circumstances in which a crime committed within Canada should or should not be considered of such a nature as to warrant the application of section F(c) of Article 1 of the Convention.

For these reasons, no question is certified.

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