Date: 20060320
Docket: IMM-4281-05
Citation: 2006
FC 361
Ottawa, Ontario,
March 20, 2006
Present:
Mr. Justice Beaudry
BETWEEN:
SALVATOR
KABURUNDI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under subsection 72(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (the Act), for judicial review of a June 9,
2005 decision by Ms. Ruth Delisle of the Refugee Protection Division of
the Immigration and Refugee Board (the Panel) excluding the applicant under
section 98 of the Act and Article 1F(a) of the Convention from
the protection provided to refugees and other persons in need of protection because
there were serious reasons for considering that he had been involved in the
commission of crimes against humanity and war crimes.
ISSUES
[2]
The
applicant raises the following issues:
1. Did the Panel err in law in
considering the issue of the applicant’s exclusion from the
status of a refugee or person in need of protection?
2. Did the Panel make its decision
without regard for the relevant material before it?
3. Did the Panel err in failing to rule
on the merits of the applicant’s application and on his
potential inclusion in the Convention refugee definitions?
[3]
For the
following reasons, the answers to these three questions are negative, and this
application for judicial review is dismissed.
FACTS
[4]
The
applicant is a citizen of Burundi, of Tutsi ethnicity. His
wife, Sophie Ndamama, is of Hutu ethnicity, and they have four children. The
Panel determined that the applicant’s wife and children were Convention
refugees and allowed their claim for refugee protection. That decision is the
subject-matter of a separate application for judicial review brought by the
respondent, in docket number IMM-3929-05.
[5]
Between 1979
and 1992, the applicant worked at the central committee of the party in power
in Burundi, UPRONA (Unité pour le
progrès national). He was also a member of that party.
[6]
From 1988 to
1993, the applicant studied business management.
[7]
Between
1993 and 1994, the applicant worked in the private sector, but joined the
public service in 1996 after failing to find work.
[8]
From 1996
on, the applicant held various positions related to financial management and
development assistance in the foreign affairs department.
[9]
In 1998, the
applicant became head of financial services. The position involved a lot of
travel, and he performed on-site audits at about 10 of Burundi’s embassies abroad. The audits revealed
many financial irregularities, and a number of officials were reprimanded and
required to repay improper spending. One of those officials was Ferdinand
Nyabenda, the chargé d’affaires in Rome.
[10]
In 2000, after
a brief posting to Burundi’s embassy in Kenya, the
applicant was appointed first secretary at Burundi’s embassy in Belgium. He was primarily involved in managing the
embassy’s finances and matters related to the European Union’s development
assistance to Burundi. He was also the chargé
d’affaires between the departure of the former ambassador and the arrival of
the new ambassador, Ferdinand Nyabenda, in 2002.
[11]
Relations between
the applicant and the new ambassador quickly deteriorated.
[12]
On a visit
to Burundi in 2003, the applicant found
out that the ambassador had denounced him as a sympathizer of the opposition
party, PARENA (Parti de la renaissance nationale). On June 11, 2003, he
was summoned by police to answer a charge of breach of national security.
[13]
Fearing
for his safety, the applicant left Burundi that very day for Brussels.
[14]
Back in Brussels, the applicant was told by a
colleague that the ambassador was conducting a real smear campaign against him,
questioning his loyalty to the government and whether he was a true Tutsi, and
insinuating that he and his family members might be spies. Rumours of his
imminent recall and dismissal reached him through his entourage.
[15]
Fearing
the worst if he were to go back to Burundi,
the applicant, his wife and two minor children left Belgium for the United States on August 30, 2003. They
made a claim for refugee protection at the Lacolle border crossing on
September 1, 2003. Their two adult children followed in their footsteps
and made a claim for refugee protection on September 2, 2003.
[16]
The
applicant says his home in Burundi and his parents’ home were
ransacked and his parents managed to escape death by leaving the house just in
time and hiding in the bush.
IMPUGNED DECISION
[17]
In its
reasons, the Panel said it was satisfied that the applicant’s identity had been
clearly established and proceeded directly to the issue of his exclusion on the
basis that there were serious reasons for considering that he had been involved
in the commission of war crimes or crimes against humanity, without dealing
with the merits of his claim for refugee protection.
[18]
The Panel
identified the appropriate standard of proof in matters involving Article 1F of
the Convention, which is lower than the balance of probabilities applicable in
civil matters (Ramirez v. Canada (Minister of Employment and Immigration),
[1992] 2 F.C. 306 (C.A.), Moreno v. Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 298 (C.A.)).
[19]
The Panel
then set out the principles from the case law on issues of complicity under
Article 1F (Ramirez and Moreno, supra, Sivakumar v. Canada
(Minister of Citizenship and Immigration), [1996] 2 F.C. 872 (C.A.), Penate
v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.),
Sungu v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C.
192 (T.D.), Mohammad v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 1457 (T.D.) (QL)).
[20]
Based on
the applicant’s written evidence and numerous documents, the Panel found that
the government of Burundi had committed numerous crimes
against humanity since 1993 against the civilian population. The Panel
determined that they were « crimes sérieux, d’actes inhumains commis
contre une population civile de manière systématique et généralisée ».
[21]
The Panel
then addressed the issue of the applicant’s complicity by association in crimes
against humanity. Based on his membership in the governing party since 1979, his
career progression within Burundi’s public service and the importance
of the positions he held before seeking refugee protection in Canada, the Panel
found that his association with the government of Burundi was voluntary and that he was fully
aware of the atrocities committed by the government.
[22]
Although
the applicant expressed his disagreement with the actions of the government of Burundi at the hearing, the Panel found
that his long government career and the importance of his diplomatic postings revealed
that he and the government of Burundi shared the same vision.
[23]
Based on
the principles set out in Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J.
No. 108 (C.A.) (QL), the Panel made the following findings:
Le tribunal conclut, au regard de la
preuve soumise, que le demandeur principal avait « une connaissance
personnelle et consciente » des actes commis par le gouvernement et son
armée, de par les fonctions qu’il occupait. La preuve a révélé que le demandeur
principal a toujours démontré son appui actif, constant et confiant à son
gouvernement, dont il a joint les rangs de façon volontaire en 1979. Alors
qu’il avait atteint un poste de haut niveau, il n’a fait aucun geste pour s’en
dissocier, bien qu’il était au courant des actions prises par son gouvernement.
Bien au contraire, il est resté en place; il a même continué à offrir ses
services après être rentré du Burundi en juin 2004, jusqu’à ce
qu’il reçoive la lettre de rappel au pays. Par conséquent, le tribunal estime
qu’il y a « des raisons sérieuses de penser » que le demandeur
principal a participé personnellement et sciemment aux crimes commis par le
gouvernement burundais, du fait qu’il s’est fait complice par association de
crimes graves contre l’humanité.
Le tribunal conclut qu’il existe des
motifs sérieux de croire que le demandeur principal s’est fait complice de
crimes contre l’humanité et de crimes de guerre, et qu’il est exclu de la
protection offerte aux « réfugiés au sens de la Convention » et aux
« personnes à protéger », par la section Fa) de l’article premier de
la Convention. Par conséquent, le tribunal n’a pas à analyser l’exclusion du
demandeur principal en application de l’article 1Fc) de la Convention
ANALYSIS
[24]
Section 98 of
the Act reads as follows:
|
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.
|
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.
|
[25]
Paragraphs (a),
(b) and (c) of section F of Article 1 of the Refugee Convention read
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.
|
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;
b) Qu’elles ont commis un
crime grave de droit commun en dehors du pays d’accueil avant d’y être
admises comme réfugiés;
c) Qu’elles se sont rendues
coupables d’agissements contraires aux buts et aux principes des Nations
Unies.
|
1. Did the Panel err in law in
considering the issue of the applicant’s exclusion from the status of a refugee
or person in need of protection?
[26]
The applicant argued
that the Panel erred in finding that the government of Burundi was an organization principally directed to a limited,
brutal purpose and that his exclusion under Article 1F(a) based
solely on his membership in that organization warranted the intervention of
this Court.
[27]
The principle that
mere membership in an organization that is principally directed to a limited,
brutal purpose provides sufficient grounds for finding that a claimant should
be excluded for complicity by association under Article 1F of the
Convention was established in Ramirez, supra.
[28]
The applicant argued
that the Panel did not establish that the government of Burundi was that kind of organization, and that the evidence showed
that he and the government did not share a common purpose with respect to the
commission of crimes against humanity.
[29]
Having read the
Panel’s reasons, I cannot accept the applicant’s argument. The Panel did not
find that his mere membership in the government of Burundi gave rise to his exclusion under Article 1F of the Convention; that
would have been a finding of mixed law and fact subject to the intervention of
this Court on the reasonableness simpliciter standard (Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[30]
On the
contrary, the Panel performed an in-depth analysis of the circumstances of the
applicant’s participation in the activities of the government of Burundi, his career path and
departure.
[31]
It is
precisely because the Panel must have found the applicant’s mere participation insufficient
in itself for exclusion that it embarked on a thorough analysis to determine
whether or not there was any mens rea indicating his personal and
knowing participation in the atrocities committed by the government of Burundi.
[32]
It is
worth mentioning that the applicant did not dispute the criminal allegations against
the government of Burundi. Nor did he deny he was aware
those crimes were committed while he was working for the government. This is clear from his
Personal Information Form.
[33]
Without question, the
applicant did not personally commit any massacres or violence against the
civilian population. However, it was not unreasonable for the Panel to find him
complicit by association, given his voluntary involvement in government
activities, his rise through the ranks of the foreign affairs department at a
time when Burundi was consumed by terrible atrocities and
the fact that he did not leave until he began to fear for his own safety. Considering
the scope of the violence committed by government forces (as shown by the
documentary evidence in the record) against members of the civilian population,
the applicant’s claim of financial necessity as justification for his continued
employment is not very impressive.
[34]
In Harb, supra,
Décary J.A. wrote at paragraph 11:
. . . It is not the nature of the
crimes with which the appellant was charged that led to his exclusion, but that
of the crimes alleged against the organizations with which he was supposed to
be associated. Once those organizations have committed crimes against humanity
and the appellant meets the requirements for membership in the group,
knowledge, participation or complicity imposed by precedent . . . , the
exclusion applies even if the specific acts committed by the appellant himself are
not crimes against humanity as such. . . .
[35]
The
applicant took great pains to play down the importance of his role, but the
fact remains that his financial work contributed to the continuation and smooth
operation of the government of Burundi, particularly in relation to
the operation of its diplomatic missions abroad and to the continuation of the
European Union’s financial aid.
2. Did the Panel make its
decision without regard for the relevant material before it?
[36]
The applicant argued
that the Panel’s decision was made without regard for relevant material in his
favour.
[37]
According to the
applicant, the evidence showed that his work was limited to financial issues
and that he never took part in the atrocities committed by the government and
soldiers of Burundi.
[38]
The applicant argued
that the Panel’s findings of fact were patently unreasonable and that the
intervention of this Court was required.
[39]
I do not
agree. The Panel clearly
accepted the fact that the applicant’s work was of a financial nature and that
he had not been directly involved in the crimes committed by the government of Burundi. However, based on his testimony and the ample documentary
evidence, the Panel found that his work was of a nature that promoted the
continued survival of the government of Burundi, and that despite the
disagreement he expressed at the hearing over the atrocities that took place
beginning in 1993, he did nothing to dissociate himself from them until he
feared for his own safety.
[40]
I therefore see no
error in the Panel’s findings of fact to warrant the intervention of this Court.
3. Did the Panel err in failing
to rule on the merits of the applicant’s application and on his potential
inclusion in the Convention refugee definitions?
[41]
According
to the applicant, the Panel erred in law in failing to deal with the merits of
his claim for refugee protection, i.e., his potential inclusion in the
“Convention refugee” categories.
[42]
The
standard of review for such an error of law would be the correctness standard (Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R.
982).
[43]
I am not of the view
that the Panel committed an error of law in failing to deal with the
applicant’s claim for refugee protection after determining that he was excluded;
since excluded persons cannot benefit from protection under the Act, failing to deal with the
merits of their claims is not an error of law.
[44]
In Gonzalez
v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646
(C.A.), Mahoney J.A. wrote at paragraph 12:
I
find nothing in the Act that would permit the Refugee Division to weigh the
severity of potential persecution against the gravity of the conduct which has
led it to conclude that what was done was an Article 1F(a) crime. The
exclusion of Article 1F(a) is, by statute, integral to the definition.
Whatever merit there might otherwise be to the claim, if the exclusion applies,
the claimant simply cannot be a Convention refugee.
[45]
I therefore find that
the Panel did not err in law in failing to consider the issue of the
applicant’s inclusion after determining that he was excluded under Article 1F(a)
of the Convention.
[46]
The parties submitted
no question for certification and the record raises none.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
“Michel
Beaudry”
Certified true
translation
Peter Douglas
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