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O. (R.T.) (Re), Convention Refugee Determination Decisions

 

O. (R. T.) (Re), Convention Refugee Determination Decisions [1994] C.R.D.D. No. 358 No. U93-09374

Indexed as: O. (R. T.) (Re) [1994] C.R.D.D. No. 358 No. U93-09374

Immigration and Refugee Board of Canada
Convention Refugee Determination Division
Toronto, Ontario

Panel: J. Goldman and W.R. Jackson In camera

Heard: May 3, 1994

Decision: September 29, 1994

Ireland (IRL)--United Kingdom (GBR)--Negative--Motion to reopen or rehearing (MR)--Males--Agents of persecution--Arbitrary arrest and detention--Exclusion clauses--Legal decisions--Persecution for political opinion--Political activities--Procedural requirements--State

Appearances:

Peter Rekai, for the claimant(s).

Judy Lewis, Refugee Hearing Officer.

Derek Taylor, Minister1s representative.

REASONS FOR DECISION

On May 3, 1994, at Toronto, Ontario, the Refugee Division heard the claim of xxxxxxx xxxxxxx xxxx, a citizen of the Republic of Ireland and the United Kingdom. The claimant arrived in Canada in December 1985 and claims to be a Convention refugee by reason of a well-founded fear of persecution because of his political opinion.

The claimant was represented by Peter Rekai, Barrister and Solicitor. The Minister of Citizenship and Immigration was represented by Derek Taylor, Appeals Officer. Donald A. McIntosh and Leena Jaakkimainen from the Department of Justice assisted the Minister1s representative. The panel was assisted by Judy Lewis, Refugee Hearing Officer (RHO). The hearing was

The issue before the panel is whether the claimant is a Convention refugee as defined in the Immigration Act.

The definition in s. 2 (1) of the Immigration Act, 1976, S. C. 1976-77, c. 52, reads in part:

2. (1)…

“Convention refugee” means any person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(a)is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or

(b)not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country;

This definition was revised somewhat by S. C. 1988, c. 35, s. 1 (R. S. C., 1985, c. 28 (4th Supp.), s. 1 (2)), to its current version in the Immigration Act, R. S. C., 1985, c. I-2, and reads as follows:

2. (1)…

“Convention refugee” means any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of the person’s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii)not having a country of nationality, is outside the country of the person’s former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b)has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

The evidence adduced at the hearing consisted of the claimant1s oral testimony, his Personal Information Form (PIF), [See note 1 below] the testimony contained in the, transcripts from his Refugee Determination hearing held on August 10 and 11, 1988, before the Immigration Appeal Board (IAB), and his Examination Under Oath on August 12, 1986. Documentary evidence was provided by counsel for the claimant, the, Minister's representative, and the RHO. The evidence provided by counsel at the hearing included a legal opinion regarding the application of the Prevention of Terrorism Act submitted by Mr. xxxxxxx xxxxxxx, Barrister (U.K.), an Amnesty International document entitled 1,United Kingdom, Political killings in Northern Ireland", and various relevant articles. The Minister's representative provided copies of correspondence with the Home Office (U.K.) with regard to the Prevention of Terrorism Act, as well as other relevant documents. The RHO provided a copy of the Prevention of Terrorism Act, as well as various human rights documents and articles.

Note 1: Exhibit C-1.

Counsel's submissions were received on June 10, 1994. The Minister,s submissions were received on July 11, 1994. Counsel's reply to the Minister’s submissions was received on August 5, 1994.

The claimant indicated that he bases his response to question 37 of his PIF on the information contained in the transcripts submitted at the hearing, as well as the, information contained in his PIF.

The facts with regard to this claim, as set out in Ward, [See note 2 below] are as follows:

The appellant, xxxxxxx xxxxxxx xxxx, was born in Northern Ireland in 1955. He joined the Irish National Liberation Army (INLA) in 1983 as a volunteer. xxxx described the INLA as a ruthless para-military organization more violent than the Irish Republican Army (IRA), with a military-like hierarchy and strict discipline. Before joining as a volunteer, he had loose connections with the INLA in that he had sympathies for their cause. Indeed, xxxx had been convicted of the offences of possession of firearms, conspiracy to convey things unlawfully into Northern Ireland, and contributing to acts of terrorism. He testified that with the constant turmoil in Northern Ireland, people were forced to “take a stand" to protect their loved ones and that his joining the INLA stemmed in part from a desire to protect himself and his family, mainly from the IRA.

xxxx’s first task as a member of the INLA was to assist in guarding two of the organization’s hostages at a farm house in the Republic of Ireland. One day after xxxx’s guard duties commenced, the INLA ordered the hostages executed. He wanted no part in the execution of these innocent hostages and underwent what he described as a “predicament of moral conscience”. As a result, he resolved to release the hostages and succeeded in doing so without revealing himself to the INLA.

Some time later, the police let slip to an INLA member that one of their own had assisted the hostages in their escape. The INLA suspected xxxx, and he was confined and tortured. Although he never admitted his role in the escape, xxxx was court-martialled by a kangaroo court and sentenced to death. However, he managed to escape and sought police protection. The police in turn charged him for his part in the hostage incident, based on finding his fingerprints at the farm where the hostages had been held.

xxxx expressed concern to the police about his wife and children. The police checked on them, only to discover that they had been taken hostage by the INLA in a pre-emptive move to prevent the claimant from “turning supergrass", the colloquial term for providing evidence to the police about INLA members and their activities.

xxxx pleaded guilty to the, offence of forcible confinement and was sentenced to three years in jail. He did not "turn supergrass"; nor did he ever admit publicly to having released the hostages. Towards the end of his prison sentence, xxxx sought the assistance of the prison chaplain for protection from INLA members. The chaplain with the assistance of police, obtained a Republic of Ireland passport for xxxx and airline tickets to Canada. xxxx arrived in Toronto in December 1985 and sought admission to Canada as a visitor. He became the subject of an inquiry in May 1986 and claimed Convention refugee status. His claim was based on a fear of persecution because of his membership in a particular social group, namely the INLA.

Note 2: Canada (Attorney General) v. Ward, [19931 2 S.C.R. 689 at 699-701.

In July 1987, the Minister of Employment and Immigration determined that Mr. xxxx was not a Convention refugee and, as a result, Mr. xxxx filed an application for redetermination of his claim before the IAB. On December 2, 1988, the IAB allowed the redetermination and found Mr. xxxx to be a Convention refugee.

The IAB decision was appealed by the Minister to the Federal Court of Appeal. On March 20, 1990, the application to review and set aside the decision of the IAB was granted by the Federal Court of Appeal, which set aside the decision and referred the matter back to the Board for reconsideration. A further appeal by the claimant to the Supreme Court of Canada resulted in the claim being referred to the Immigration Refugee Board on June 30, 1993, to determine whether Mr. xxxx can obtain protection in Great Britain.

On April 22, 1994, counsel for the claimant, the claimant, the Minister’s representative, the RHO and panel members held a preliminary conference in order to establish the procedure to be followed at the Refugee Division hearing, and to identify the issues raised by the claim.

The following is a summary of the discussion at the preliminary conference held pursuant to CRDD Rule 18, as agreed to by all the parties:

1. The Supreme Court in Ward [See note 3 below] has indicated that the claim was grounded in political opinion, therefore no other ground need be canvassed.

2. The Supreme Court sent this claim to the Refugee Division for a determination “as to whether Ward can be afforded protection in Great Britain”. [See note 4 below]

The parties to the proceedings, based on the explicit directions of the Supreme Court, agreed that exclusion was not an issue in the present hearing.

The panel notes that at the time Mr. xxxx claimed refugee status, the exclusion clauses did not form part of the Convention refugee definition as contained in the Immigration Act, 1976.

3. It was agreed that the principal issue in this claim is the availability of protection. In this regard the following questions need to be canvassed:

a. Will Mr. xxxx be allowed to enter Great Britain?

b. If allowed in, will he be protected? (in this regard adequacy of protection needs to be canvassed)

C.Is there a serious possibility [See note 5 below] that the government of Great Britain would subject Mr. xxxx to harasment amounting to persecution, should Mr. xxxx return to Great Britain?

Note 3: Ibid., at 689.

Note 4: Ibid., at 754.

Note 5: Adjei v. M.E.I., [1989] 2 F.C. 680 (C.A.) at 683.

Counsel indicated that he cannot make a direct approach to British authorities concerning Mr. xxxx’s entry into Great Britain because of his concern for the safety of the, claimant and his family. He indicated that the claimant feared that such inquiries will be leaked to those who wish Mr. xxxx harm, namely the Irish National Liberation Army (INLA).

In light of the above, the panel will need to assess the state,s ability or inability to protect Mr. xxxx, keeping in mind the test set out in Ward, [See note 6 below] that "the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state". The panel must thus assess the reasonable nature of the claimant’s refusal actually to seek out this protection.

Note 6: Supra, footnote 2 at 724.

In his examination-in-chief the claímant stated that he would be denied entry into Great Britain under the Prevention of Terrorism Act (PTA). He bases his opinion in this regard on the fact that he was denied entry into Great Britain (prior to his involvement with the INLA other than as a sympathizer) in 1977, (when he was detained for seven days), and in 1979. He was allowed entry into Great Britain in 1976 in order to participate in a ten-day course, however, he was detained in Great Britain for three days when he was returning to Northern Ireland. The claimant indicated that he did not consider the treatment he received during his detention in Great Britain as harsh, (even though he was denied food and drink during the detention in 1979) when compared to the numerous detentions he and many Irish nationalists experienced in Northern Ireland, where they were physically and mentally abused.

Given the publicity his case has generated, British authorítíes may admit him in order not to embarrass Canadian authorities. However, the claimant believes that he would be excluded from Great Britain within the first three years of his arrival, a possibility envisaged under the PTA.

The claimant then indicated that even if he were allowed entry into Great Britain, his life there would be untenable. As someone identified as a terrorist, he would be subjected to harassment and would fall under suspicion whenever an act of terrorism was perpetrated in Great Britain, and would be detained under the Special Powers Act, specifically sections 11 and 12. Furthermore, if British authorities consider that he may still have useful information, given his past involvement with the INLA, they may pressure him into revealing it whenever he is detained on suspicion of involvement in terrorist actions.

The claimant indicated, further, that he would be at risk from the INLA, who would immediately learn of his return to Great Britain, given their network of informants and sympathizers throughout the United Kingdom. He indicated that he still has sensitive information with regard to the INLA and feared to divulge that information even in Canada, in case its disclosure would be discovered by the INLA should that information be reported in a news article. The claimant testified that he had not been merely a member of the INLA as he had previously stated, but xxxxxxxxx of the INLA xxxxxxxxxxxx and that he used to purchase arms for the organization. He, thus, has information with regard to INLA funds and their location (specifically bank account numbers), the location of safe-houses, and the names of INLA sympathizers. Once in Great Britain, the INLA would, therefore, consider him a threat and a person who may succumb to pressure from British authorities and reveal information damaging to the organization.

The claimant would further be sought by those members of the INLA who feared that he would seek revenge for the severe injuries he sustained at their hands in 1983, at the time he was sentenced to death by the INLA. He also believes that the death sentence passed by the INLA is still in force. He does not believe that the passage of time has minimized his risk with respect to the INLA. He does not merely fear for himself, but for his family, who will be used by the INLA to punish or to pressure him, as they did in 1983 when the claimant's wife and her two children were taken hostage by the INLA.

Although the INLA has gone through upheavals and interorganizational struggle, it exists and is active today, as indicated in the articles presented in evidence by counsel. [See note 7 below]

Note 7: Exhibit C-3.

With regard to protection, the claimant indicated that British authorities would be unable to protect him, even if they wished to do so. The INLA is able to infiltrate all organizations. However, the claimant does not believe that British authorities will be interested in protecting him. He will a1ways be considered a terrorist and, thus, undesirable. His rehabilitation and the fact that he was responsible for saving the lives of INLA hostages will not change this perception. The claimant referred to an incident in Canada, during the Group of Seven summit at which Margaret Thatcher participated. The claimant1s apartment was ransacked; photographs were removed. Although the RCMP denied any involvement, the claimant believes that the RCMP were responsibl and that they responded to British concerns and requests. He also referred to the deportation by Canada of three Irish citizens at the time.

Furthermore, the claimant,s position in Great Britain would be untenable, given the hostility felt by the English towards Irish nationalists. He is certain that because he has a police record which is readily accessible to any prospective employer, he will be unable to find employment.

He indicated that although he is an Irish nationalist, he has dissociated himself from the INLA. He did this when he released the hostages he was guarding in 1983. It is for this reason that, when he served his three-year sentence, Irish authorities placed him in a criminal facility, and (at his request) in solitary confinement, and not in a political prison where authorities could not have ensured his safety.

The claimant was asked why there was a discrepancy between some of the information contained in the transcripts from. His previous examinations, and his present oral testimony, particularly with regard to the leadership position she allegedly held in the INLA, and which he only revealed at this hearing. The claimant explained that he wished to protect himself and his family at the time of the previous hearing of his claim before the IAB. Had this information leaked out, even inadvertently, the INLA would have known that he had revealed sensitive information damaging to the INLA.

Mr. xxxx testified that neither he in Canada nor his wife in Northern Ireland has been approached or contacted by the INLA since 1983.

Mr. xxxx fears individual INLA members in Ireland, and fears the INLA in general throughout the United Kingdom. He bases his fear of the INLA on the following:

1. The death sentence imposed on him in 1983 because of INLA suspicion that he had released the hostages;

2. The sensitive information which he still possesses, eleven years after his disassociation from the INLA;

3. His awareness of the INLAIs methads of operation;

4. The fact that the INLA continues to be an active terrorist organization; and

5. The INLA's infiltration into all parts of the United Kingdom, including Great Britain, and its ability to operate there, knowing that its members can escape with ease, undetected, in contrast to any unlawful activities perpetrated by its members abroad.

The claimant bases his fear of British authorities on the following:

1. They would most certainly deny him entry under the PTA;

2. He would be under suspicion whenever an act of terrorism occurred and, therefore, detained at will under the Special Powers Act;

3. He could be pressured to reveal sensitive information about the INLA and thus would become a threat to the INLA; and

4. The very possibility that he can and might reveal information about the INLA to British authorities will put him at risk from. the INLA.

ANALYSIS

The central issue in the present claim is availability of protection. For, “if a state is able to protect the claimant, then his or her fear is not, objectively speaking, wellfounded." [See note 8 below] An assessment of the issue of protection encompasses the issues submitted by counsel, namely:

1. Is Mr. xxxx likely to obtain entry into Great Britain?

2. In the event Mr. xxxx can enter Great Britain, can he be adequately protected by British authorities from the INLA? and,

3. In the event Mr. xxxx can gain entry into Great Britain, is there a serious possibility that he would be subjected to persecution emanating direct1y from the state?

Note 8: Supra, footnote 2 at 712.

With regard to protection, the Convention refugee definition states that a Convention refugee "means any person who (a)... (i) is outside the country of the person’s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country". [See note 9 below]

Note 9: While this paragraph is taken from Bill C-55, in this regard the definition is the same as under the Immigration Act, 1976.

The panel is of the view that in the present claim it must assess both the "unable" and the "unwilling" categories of the definition. [See note 10 below] The "unable" category pertains to the claimant's right to enter Great Britain and to the statels ability to offer him effective protection from the INLA. The "unwilling" category pertains to the claimant’s allege fear of British authorities.

Note 10: Supra, footnote 2, at 720-21.

In assessing the "unable" category, we are guided by the UNHCR Handbook, [See note 11 below] which states in this respect:

98.Being unable to avail himself of such protection implies circumstances that are beyond the will of the person concerned. There may, for example, be a state of war, civil war or other grave disturbance, which prevents the country of nationality from extending protection or makes such protection ineffective. Protection by the country of nationality may also have been denied to the applicant. Such denial of protection may confirm or strengthen the applicantis fear of persecution, and may indeed be an element of persecution.

99.What constitutes a refusal of protection must be determined according to the circumstances of the case. If it appears that the applicant has been denied services (e.g, refusal of a national passport or extension of its validity, or denial of admittance to the home territory) normally accorded to his co-nationals, this may constitute a refusal of protection within the definition.

Note 11: Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988, as cited with approval by the Supreme Court in Ward, at 718.

If it is established that the claimant would be denied access to Great Britain, then he may fall into the "unable" category, and thus be determined to be “unable …… to avail himself of the protectionl, of his country of nationality.

Denial of entry may, thus, constitute an objective basis for a well-founded fear of persecution. As well, with respect to his fear of the INLA, the claimant claims that the state is protection will be ineffective. The concept of effectiveness of protection is encompassed in the "unable" as well as the "unwilling" category.

In addressing the issue of availability of protection, we are guided by Ward, [See note 12 below] where the Supreme Court of Canada sets out the test to be applied when determining whether a state is capable of protecting its citizens. The Court begins with the presumption that the state is capable of protecting a claimant and states that:

... the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherw¡se, the claimant need not literally approach the state.

... where such an admission [“of inability to protect] is not available, however, clear and convincing confirmation of a state is inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangements or the claimant’s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. (emphasis added)

Note 12: Supra, footnote 2 at 724-725.

With regard to the "unwilling" category, the claimant claims that he is unwilling, by reason of his fear of persecution, to avail himself of the protection of the country of his nationality. In this regard he claims that as a former INLA member, he will be persecuted by British authorities, even if he is permitted entry into Great Britain.

THE “UNABLE” CATEGORY

In the present claim, the panel is not satisfied that the claimant has provided such “clear and convincing confirmation” of the statels inability to protect him as is required in the test set out in Ward. Furthermore, the panel is not persuaded that it is “objectively unreasonable” for the claimant not to have sought the protection of his home authorities.

Initially, Mr. xxxx stated that he did not approach British authorities directly for a ruling whether he will be allowed into Great Britain, because he feared that such information would be leaked, perhaps inadvertently, to the INLA. As support for his fear in this regard the claimant referred to the incident in 1983, when his action in releasing INLA hostages was inadvertently leaked to that organization, resulting in great danger to the claimant and his family.

The panel is not persuaded that this is a valid argument. Mr. xxxx’s situation in Canada is well known. The Supreme Court’s decision in this regard is now in the public domain and presumably known to the INLA. However, as indicated below, there is no indication of continued INLA interest in the claimant. Nor is there sufficient evidence to indicate that his prospective return to Great Britain would be deliberately leaked to the INLA, or that there is a reasonable chance that it would be leaked inadvertently. We agree with the Minister's submission in this regard that if Mr. xxxx, as he claims, has any information which may be useful to British authorities, the British Government would hardly deliberately, endanger Mr. xxxx and thus be deprived of a useful informer.

Counsel submits that Mr. xxxx will be excluded under the terms of the PTA from entry into Great Britain. He bases his finding in part on the, claimant,s experiences in 1977 and 1979, and on the opinion he has obtained from Mr. xxxxxxx xxxxxxx, a British barrister. [See note 13 below] Counsel further submits that the opinion [See note 14 below] of the Home Office received by the Minister does not offer the possibility of predetermination of permission to enter Great Britain. The offer is made to Canadian authorities conditional on their decision to deport the claimant.

Note 13: Exhibit C-2.

Note 14: Exhibit M-1, letter from x.x. xxxx, Home Office, dated April xx, 1994.

Counsel further submits that the Home Secretary cannot make a binding offer with regard to admission to Great Britain. That offer can only be made at the port of entry, and even then is not binding for three years.

Mr. xxxxxxxls opinion describes the PTA and its application in general terms. It does not, in our view, take into consideration all the factors which must surely be considered by British authorities when arriving at their decision in this particular case. Specifically, on the one hand Mr. xxxxxxx indicates that “obviously the significance of Mr. xxxx's break from the INLA or his absence from the UK is really a matter for the Home Secretary", yet he then states that “I take the view that these two factors have very little significance”. It would appear, then, that to a large extent, Mr. xxxxxxx bases his opinion in this regard on the mere existence of the PTA.

However, as submitted by the Minister, the Supreme Court took the PTA into consideration when it concluded that the issue of protection in Great Britain had not been resolved, and directed the Board to consider whether that Act, per se, satisfies the requirement that the claimant is unable to avail himself of the protection of his country of nationality. [See note 15 below]

Note 15: Supra, footnote 2 at 754.

The Home Secretary bases his decision as too whether entry is warranted on information concerning each particular case. Surely Mr. xxxx’s action in releasing the hostages, thus testifying to his active dissociation from the INLA in 1983; the fact that Mr. xxxx has had no further contact with that organization for eleven years; the fact that he confessed his part in the hostage taking to Irish authorities and served a prison sentence as a result, would be taken into consideration by the Home Secretary in coming to his decision. The Supreme Court of Canada has emphatically accepted Mr. xxxx's break with the INLA and indeed, found that his life is in danger from that organization as a consequence. The letters from the prison chaplain and the Bishop of xxxxx in support of the claimant's statement that he has completely disassociated himself from the INLA will surely weigh in his favour, as will the fact that Irish authorities facilitated the claimant’s escape from the INLA and his flight to Canada.

In coming to our decision that Mr. xxxx has not discharged the onus of demonstrating “clear and convincing confirmation” of the statels inability to protect with respect to his ability to enter Great Britain, the panel has also taken into consideration the opinion provided by Mr. x.x. xxxx of the Home Office. Specifically, we find it significant that Mr. xxxx states that ”it would be possible to establish, in advance of the subject’s arrival in the United Kingdom, whether he would be excluded from Great Britain on his return” [See note 16 below] (emphasis added). Nor is it certain, as indicated in Mr. xxxx’s letter, that the Home Secretary would be asked to consider exclusion in a specific case or whether, if asked, exclusion woulld be imposed. [See note 17 below]

Note 16: Supra, footnote 14, letter dated November xx, 1993.

Note 17: Ibid.

There is no indication that such decisions by the Home Secretary are made arbitrarily, in a capriclous manner, without due regard to the particulars of each case. The panel notes that Mr. xxxx’s letter, dated November xx, 1993, indicates that the Home Secretary would not exclude a person purely on the grounds of his past membership in the INLA. As well, Mr. xxxx’s letter dated April xx, 1994, in Paragraph 6, indicates that the fact of previous terrorist convictions does not, by itself, provide sufficient grounds in law for making an exclusion order. The panel notes that safeguards, such as the appointment of a person to review the working of the PTA and the possibility of a judicial review, have been put in place to ensure that the powers under the Act are not abused. [See note 18 below]

Note 18: Attachment to Minister’s submissions.

We are not persuaded that the Home Office would only make a predetermination to the Canadian Government where the subject of the inquiry is to be deported. Mr. xxxx is replying to a letter from the Immigration Appeals Office, not to an inquiry made by the claimant. We note further that the letter states that "we would be prepared to advise him or his representative whether the Home Secretary was presently minded to make an exclusion order against him.” This offer was not accepted.

With respect to Mr. xxxx’s fear of persecution at the hands of the INLA and the state’s inability to offer him effective protection, the panel must assess the nature of the risk in Great Britain at the present time and determine whether the protection available is adequate. As stated in Ward, “(t)he fact that Ward’s life will be in danger should he be returned either to Ireland or to Great Britain is not disputed by anyone; the question, rather, is whether Ward can be protected from that danger" in Great Britain. [See note 19 below] Ward, [See note 20 below] thus, concluded that on the facts of this case, it wasn’t necessary for the claimant to prove the state’s inability to protect him in Northern Ireland, as representatives of the state authorities conceded their inability to protect Mr. Ward (vis-a-vis Northern Ireland) and there was a "concession" that Eire could not protect him also. The Supreme Court did not come to such a conclusion with regard to protection in Great Britain.

Note 19: Supra, footnote 2 at 753.

Note 20: Supra, footnote 2 at 724.

With respect to the INLA, the panel notes that eleven years have passed since Mr. xxxx severed his association with that terrorist organization. The panel questions what information, which would be of any interest to the authorities, the INLA could suspect the claimant to posses given the many changes which have occurred in that organization as a result of internecine fighting, imprisonment of its members and death of many of its leaders at the hands of fellow INLA members and British authorities, [See note 21 below] and in light of the minor role which the panel believes Mr. xxxx had in that organization.

Note 21: Supra, footnote 7.

The panel further notes that Mr. xxxx had served a three-year prison sentence and had not revealed any information about the INLA. The INLA has neither contacted the claimant nor his wife, who has continued to reside in Northern Ireland, since 1983. The claimant indicated that the IRA has links in the USA and Canada and that the IRA and INLA cooperate and work "hand in hand". Given the media publicity generated by his case, as described by the claimant, [See note 22 below] the INLA must be aware that Mr. xxxx lives in Canada and that his wife and family continue to live in Northern. Ireland and visit him every summer.

Note 22: The claimant referred to the publicity generated by his case in the past and provided a recent article from the Toronto Sun, "Six they let stay", dated April 30, 1994.

Mr. xxxx stated that the INLA does not perceive him to be a threat while he lives in Canada, since British authorities do not have the leverage to put pressure on him (by laying false charges under the Special Powers Act) outside the United Kingdom in order to force him to reveal sensitive INLA information. However, the panel is not persuaded that the claimant possesses sensitive information about the INLA or that he is perceived by that organization and by British authorities to possess such information (given his actual role in that organization, the short period of time he was associated with it and the fact that there has been no contact with the INLA since 1983).

As noted above, the panel is not persuaded that the claimant held the important position in the INLA which he ascribed to himself at the present hearing. The extensive evidence from previous hearings, and the information in the Ward decision indicate that, except for putting up posters and helping in transportation, the only INLA activity with which the claimant was involved was to guard the hostages in question. The panel is of the view that at this hearing Mr. xxxx has attempted to enhance his importance in the organization and has overstated the knowledge he possesses which may still potentially be of importance to British authorities, in order to exaggerate his possible risk at the hands of the INLA and British authorities. His explanation for not revealing this information previously, namely that he feared to endanger his family, is not satisfactory in view of the fact that he could have sought to present such testimony in camera at the previous hearings, as was the case with some testimony, notably that given by his wife who testified at the time. The panel is further of the view that Mr. xxxx enhanced his role in the INLA from mere member to xxxxxxxxx of the xxxxxxxxxxxx, in order to demonstrate that he possesses secret information about the INLA to which only the leadership is privy and, thus, of interest to British authorities.

The claimant severed his links with the INLA in 1983. Although, as indicated by Mr. xxxx, “the INLA remains an active terrorist organization, which has in the past year carried out attacks in Great Britain and Northern Ireland", [See note 23 below] that organization is significantly different from. The one with which the claimant had been affiliated for a short period of time. Because of in-fighting among INLA members, many of those, including the leadership with whom the claimant had been affiliated, have been killed. [See note 24 below] The organization has only recently resurfaced. Its forays into Great Britain have been sporadic. It has targeted various locations for random bombing, where the victims have been innocent passers-by. There is insufficient evidence to conclude that they have had any success targeting individuals. There is, as well, every indication that the British government is taking extreme measures in order to apprehend the culprits and stop random terrorist bombings. [See note 25 below] Further with regard to protection, the panel notes that Mr. xxxx refers to the availability of a witness protection program, where appropriate. [See note 26 below]

Note 23: Supra, footnote 14, Exhibit M-1, correspondence between the Immigration Appeals Office and the Home Office, dated October xx, 1993 and November xx, 1993.

Note 24: Exhibit C-3, various articles; exhibit R-1, "Ulster’s ‘Mad Dog' Died the Way He Killed”, The Toronto Star, February 12, 1994.

Note 25: Exhibit C-3, "Police target hard-left activists", Sunday Times, March 28, 1993.

Note 26: Supra, footnote 14, dated November xx, 1993.

The panel notes that although, as testified by Mr. xxxx, his case has been well publicized and his whereabouts are widely known, and although his wife and children continue to live in Northern Ireland and visit the claimant in Canada every summer, neither he in Canada, nor she in Northern Ireland, has been approached by the INLA even though, as indicated by the claimant, the INLA, through its links with the IRA, is active in North America.

Is it reasonable to infer, as the claimant surmises, that the present INLA and the present members would still have an interest in him and, given the measures which have been taken by British authorities to prevent the organization’s activities in that country, [See note 27 below] risk the safety of their members in order to harm him? The panel does not think that Mr. xxxx’s risk at the hands of the INLA is so great as to satisfy the test set out in Adjei. [See note 28 below]

Note 27: Exhibit C-3.

Note 28: Supra, footnote 5.

The Supreme Court makes it clear in Ward [See note 29 below] that “(a)bsent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant", unless there is an admission by the state that it cannot afford protection (as is the case with regard to Northern Ireland). Great Britain is not a country where “a complete breakdown of state apparatus" has occurred. In fact, the Supreme Court stated that Great Britain should be presumed capable of protecting its nationals. [See note 30 below]

Note 29: Supra, footnote 2 at 725.

Note 30: Supra, footnote 2 at 754.

Counsel has compared the claimant’s situation to that of Mr. xxxxxxxxx. [See note 31 below] However, on the evidence before us, we cannot find that the two situations are similar. There is insufficient evidence to persuade us that, like Mr. xxxx, Mr. xxxxxxxxx has renounced terrorism in words and actions. As well, Mr. xxxxxxxxx is not a British subject. [See note 32 below] However, the panel notes, as indicated in the Queen’s Bench Division transcript, that "between May 1987 and August 1987, again between September 1987 and early 1988, again between October 1988 and August 1989, and finally from April 1990 onwards, Mr. xxxxxxxxx was in Great Britain either seeking work or actually working". [See note 33 below] Significantly, there is no indication that Mr. xxxxxxxxx was prevented from entering the United Kingdom, including Great Britain, on a number of occasions even though, like Mr. xxxx, he had been convicted of the illegal possession of arms in 1983.

Note 31: Counsells submissions, p.2; Minister’s submissions, P.10.

Note 32: Attachment to Minister’s submissions, July 11, 1994, Queen’s Bench Division transcript.

Note 33: Ibid.

Because of the reasons set out above, the panel is not persuaded that the claimant is unable to avail himself of the protection of his country of nationality.

THE "UNWILLING" CATEGORY

The claimant also claims that by reason of his fear of persecution, he is unwilling to avail himself of the protection of his country of nationality, the United Kingdom. The claimant stated that he fears persecution from the British Government who will suspect him of acts of terrorism (however erroneous) because of his past INLA affiliation. In support of this allegation, the claimant suspects that his residence in Canada was searched by Canadian authorities in anticipation of an international meeting at which British Government officials were to participate.

The panel notes that the claimant had indicated quite clearly at his previous hearings that he did not fear the British Government, [See note 34 below] but only the ineffective protection it would provide him with respect to the INLA. The panel is further not persuaded that the claimantis situation compares to the "Guilford Four", or the "Birmingham Six”, as submitted by counsel, in which there were clearly miscarriages of justice. The claimantís actions and history can be presumed to be well known to British authorities. They would have to be made aware of all aspects of the claimant’s situation if a direct approach were to be made to British authorities with respect to the claimant’s entry into Great Britain. Records of the period in question, testimony of the individuals involved at the time, as well as the Supreme Court decision in Ward, would be before British authorities. Mr. xxxx’s case would, thus, be clearly documented, unlike the suspects in the cases cited by counsel.

Note 34: Examination Under Oath transcript, pp.4, 6, 22; IAB transcript, pp.102-108, 114-115, 145-147, 163-164.

Tragically, miscarriages of justice occur even in the most democratic and progressive jurisdictions. However, given the safeguards in place in such jurisdictions, their rare occurrence poses only a minimal risk and does not satisfy the test as set out in Adjei. [See note 35 below] As stated by MacGuigan, J.A. in Satiacum: [See note 36 below]

In the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee hearing,….Canadian tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a nondemocratic State, contrary evidence might be readily forthcoming, but in relation to a democracy…. contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself.

…In all but the most extraordinary circumstances all the events leading up to a prosecution and all of the events of a trial in a free and independent foreign judicial system must be taken to be merged into the judicial process and not open to review by a Canadian tribunal. Extraordinary circumstances would be those, for example, which tended to impeach the total system of prosecution, jury selection or judging, not discrete indiscretions or illegalities by individual participants which, even if proved, are subject to correction by the process itself.

Note 35: Supra, footnote 5.

Note 36: M.E.I. v. Satiacum (1989), 99 N.R. 171 (F.C.A.) at 176, 177.

There is insufficient evidence before the panel to impugn the judicial system of the United Kingdom and to discount the availability of due process to the degree required by Satiacum. The panel notes, as well, that there is no evidence of a specific interest in Mr. xxxx on the part of the British authorities at the present time.

The documentary evidence [See note 37 below] clearly indicates that all the institutions integral to a liberal, western democracy, such as the judiciary, free press, the unhindered presence and activity of national and international human rights organizations are in place in Great Britain. international criticism has focused on Northern Ireland. There is insufficient evidence to determine that systematic violations of human rights occur in Great Britain with respect to any of its citizens.

Note 37: Exhibit R-1, Human Rights Watch World Report 1993, 1994; Amnesty International Report 1993; Country Reports on Human Rights Practices for 1993, United States Department of State, February 1994.

Finally, counsel submits that Mr. xxxx is a British national under protest, that he does not want to be British. It would follow from this that Mr. xxxx does not wish to avail himself of the protection of Great Britain.

The Convention refugee definition does not encompass such a situation. National protection, when available, must in all cases take precedence over international protection. [See note 38 below] Renouncing one’s citizenship or nationality will not automatically bring a claimant within the protection of the Convention refugee definition.

Note 38: Supra, footnote 2 at 726, 751, 752.

In this regard we find Bouianova [See note 39 below] instructive. In that decision, the court stated:

In my view the status of statelessness is not one that is optional for an applicant. The condition of not having a country of nationality must be one that is beyond the power of the applicant to control. Otherwise, a person could claim statelessness merely by renouncing his or her former citizenship. This would then render unnecessary those provisions of the definition of convention refugee that require that a person demonstrate an inability or unwillingness by reason of a well-founded fear of persecution to return to the person’s country of former citizenship. (emphasis added)

Note 39: Bouianova, Tatiana v. M.E.I. (F.C.T.D., no. 92-T-1437), Rothstein, June 11, 1993, p.4.

After careful consideration of all the evidence and because of the reasons stated above, the panel is not persuaded that the claimant has a well-founded fear of persecution by reason of his political opinion. Nor, specifically, is the panel persuaded that he is ”unable or, by reason of that fear, unwilling to avail himself of the protection”, of his country of nationality.

The Refugee Division, therefore, determines the claimant,xxxxxxx xxxxxxx xxxx, not to be a Convention refugee.

“Jeanette Goldman”

Concurred in by: "W.R. Jackson”

Dated at Toronto this 29th day of September 1994.

 

 

Topics: Persecution based on political opinion, Convention Refugee, Freedom of speech, Freedom of expression,